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Robe & Gavel: Federal Judicial Vacancy Count released for March 1

By Ballotpedia staff
In Newsletters
March 7, 2023 at 4:00 PM

Welcome to the March 7 edition of Robe & Gavel, Ballotpedia’s newsletter about the Supreme Court of the United States (SCOTUS) and other judicial happenings around the U.S.

We’re starting our March SCOTUS sitting with a bang as we dive into the new federal judicial vacancy count. Let’s gavel in!

Follow Ballotpedia on Twitter or subscribe to the Daily Brew for the latest news and analysis.

We #SCOTUS and you can, too!

Grants

SCOTUS accepted two new cases since the Feb. 27 edition. To date, the court has agreed to hear 60 cases for the 2022-2023 term. SCOTUS dismissed one case after it was accepted. One case has yet to be scheduled for arguments.

Click the links below to learn more about these cases:

Consumer Financial Protection Bureau v. Community Financial Services Association of America, Limited concerns the appropriations clause in Article I, Section 9 of the Constitution. The case originated from the U.S. Court of Appeals for the Fifth Circuit.

Pulsifer v. United States concerns 18 U.S.C. § 3553(f)(1) and the First Step Act of 2018. The case originated from the U.S. Court of Appeals for the 8th Circuit.

Arguments

The Supreme Court will not hear arguments in any cases this week. Click here to read more about SCOTUS’ current term.

Opinions

SCOTUS issued two new opinions since our Feb. 27 edition. The court has issued rulings in seven cases so far this term. Fifty-five cases are still under deliberation.

Click the links below to read more about the specific cases SCOTUS ruled on since our Feb. 27 issue:

Feb. 28, 2023

Delaware v. Pennsylvania and Wisconsin was argued before the court on Oct. 3, 2022.

The case: Several states sued Delaware in U.S. District Court, disputing Delaware’s acquisition of unclaimed funds from MoneyGram official checks. Delaware moved for the U.S. Supreme Court to review the cases as part of its original jurisdiction.


The outcome: The court remanded the decision to the Special Master in a 9-0 ruling.

  • To remand means to return a case or claim to a lower court for additional proceedings.

Bittner v. United States was argued before the court on Nov. 2, 2022.

The case: The case concerns the Bank Secrecy Act. The question presented is “Whether a ‘violation’ under the Act is the failure to file an annual FBAR [Foreign Bank and Financial Accounts form] (no matter the number of foreign accounts), or whether there is a separate violation for each individual account that was not properly reported.”

The outcome: The court reversed and remanded the decision of the U.S. Court of Appeals for the 5th Circuit in a 5-4 ruling.

  • To reverse a case means to overturn a lower court’s decision.

Upcoming SCOTUS dates

Here are the court’s upcoming dates of interest:

  • March 17, 2023: SCOTUS will conference. A conference is a private meeting of the justices.

The Federal Vacancy Count

The Federal Vacancy Count tracks vacancies, nominations, and confirmations to all United States Article III federal courts in a one-month period. This month’s edition includes nominations, confirmations, and vacancies from Feb. 2 to March 1.  

Highlights

  • Vacancies: There have been four new judicial vacancies since the February 2023 report. There are 80 vacancies out of 870 active Article III judicial positions on courts covered in this report. Including the United States Court of Federal Claims and the United States territorial courts, 82 of 890 active federal judicial positions are vacant.  
  • Nominations: There were three new nominations since the February 2023 report. 
  • Confirmations: There were 12 new confirmations since the February 2023 report.

Vacancy count for March 1, 2023

A breakdown of the vacancies at each level can be found in the table below. For a more detailed look at the vacancies in the federal courts, click here.

*Though the United States territorial courts are named as district courts, they are not Article III courts. They are created in accordance with the power granted under Article IV of the U.S. Constitution. Click here for more information.

New vacancies

Four judges left active status since the previous vacancy count, creating Article III life-term judicial vacancies. The president nominates individuals to fill Article III judicial position vacancies. Nominations are subject to U.S. Senate confirmation.

The following chart tracks the number of vacancies in the United States Courts of Appeals from President Joe Biden’s (D) inauguration to the date indicated on the chart.

U.S. District Court vacancies

The following map shows the number of vacancies in the United States District Courts as of March 1, 2023.

New nominations

There were no new nominations since our Feb. 27 issue.


The president has announced 154 Article III judicial nominations since taking office Jan. 20, 2021. For more information on the president’s judicial nominees, click here.

New confirmations

The Senate has confirmed six nominees since our Feb. 27 issue. As of March 1, the Senate has confirmed 109 of President Biden’s judicial nominees. 

Comparison of Article III judicial appointments over time by president (1981-Present)

  • Presidents have made an average of 93.7 judicial appointments through March 1 of their third year in office.
  • President Bill Clinton (D) made the most appointments through March 1 of his third year with 128. President Barack Obama (D) made the fewest with 69.
  • President Donald Trump (R) made the most appointments through four years with 234. President Ronald Reagan (R) made the fewest through four years with 166.
  • President Ronald Reagan (R) made the most appointments through one year in office with 41. President Barack Obama (D) made the fewest with 13.
  • President Bill Clinton (D) made the most appointments through two years with 128. President Barack Obama (D) made the fewest with 62.

Need a daily fix of judicial nomination, confirmation, and vacancy information? Click here for continuing updates on the status of all federal judicial nominees.

Or, keep an eye on this list for updates on federal judicial nominations.

Looking ahead

We’ll be back on March 20 with a new edition of Robe & Gavel. Until then, gaveling out! 

Contributions

Myj Saintyl compiled and edited this newsletter, with contributions from Sam Post.



The Ballot Bulletin: Ballotpedia’s Weekly Digest on Election Administration, March 3, 2023

By Ballotpedia staff
In Newsletters
March 3, 2023 at 4:00 PM

Welcome to The Ballot Bulletin: Ballotpedia’s Weekly Digest on Election Administration. Every Friday, we deliver the latest updates on election policy around the country, including legislative activity, big-picture trends, and recent news.

In today’s issue, you’ll find: 

  • Legislative activity: About the bills acted on this week. 
  • The big picture: 
    • Legislative status: The number of bills introduced, voted on, or enacted into law.
    • Concentration of activity: The states that have had the most legislative activity.
    • Partisan affiliation of sponsorship: The number of bills that Democrats and Republicans have sponsored. 
  • Recent news: Noteworthy developments in election policy at the federal, state, and local levels, including litigation and ballot measures. 

Legislative activity

Since Feb. 24, state legislatures have acted on 280 bills, a 4.4% decrease from last week’s 294 bills. Of these bills, 78 are from states with Democratic trifectas, 160 are from states with Republican trifectas, and 42 are from states with divided governments. These 280 bills represent 16.5% of the 1,701 pieces of legislation we are currently tracking. At this point in 2022, we were tracking 2,204 pieces of legislation. 

The bill topic with the most activity this week was contest-specific procedures (46), a category that includes primary systems, municipal election procedures, recall elections, special election procedures, and other systems unique to a particular election type. Other topics with the most activity included ballot access (37), audits and oversight (30), voter registration and list maintenance (29), and ballot counting and certification (27). 

One bill was defeated in committee or by floor vote.

  • Republican trifectas: 1

187 bills were introduced (or had pre-committee action).

  • Democratic trifectas: 66
  • Republican trifectas: 96
  • Divided governments: 25

27 bills advanced from committee. 

  • Democratic trifectas: 4
  • Republican trifectas: 18
  • Divided governments: 5

42 bills passed one chamber (or had pre-adoption action in the second chamber). 

  • Democratic trifectas: 8
  • Republican trifectas: 24
  • Divided governments: 10

23 bills passed both chambers. Those bills, with their official bill titles, are:

  • Republican trifectas: 21
    • SD HB1112: Modify provisions for a statewide runoff election.
    • SD HB1123: Authorize school boards to modify the length of terms for members to allow for holding joint elections.
    • SD HB1148: Clarify registration and residence requirements for voting at a township meeting.
    • SD SB102: Require the continued maintenance of the official list of candidates prior to an election.
    • SD SB46: Enhance the penalty for petition circulation perjury.
    • SD SB161: Make an appropriation to the Office of the Secretary of State for voter roll maintenance, ballot machines, and election security.
    • SD SB140: Revise certain provisions relating to voter registration.
    • SD SB160: Establish post-election audits.
    • SD HB1124: Modify provisions pertaining to the testing of automatic tabulating equipment.
    • SD SB55: Prohibit ranked-choice voting.
    • SD SB40: Revise the process for nominating candidates for the offices of lieutenant governor, attorney general, and secretary of state.
    • SD SB139: Revise provisions qualifications for the purposes of voter registration.
    • SD SJR505: Proposing and submitting to the electors at the next general election an amendment to the Constitution of the State of South Dakota, updating references to certain officeholders and persons.
    • UT SB0043: Public Notice Requirements
    • UT SB0063: Election Candidate Replacement Amendments
    • UT HB0162: Voter Accessibility Amendments
    • UT SB0017: Voting and Voter Residency Amendments
    • WY HB0047: Election equipment-federal certification.
    • WY HB0103: Political party affiliation declaration and changes.
    • WY SF0131: Prohibition on delivery of unsolicited ballot forms.
    • WY SF0153: Election security.
  • Divided governments: 2
    • VA SB1151: Local government; standardization of public notice requirements for certain intended actions.
    • VA HB1948: Absentee voting; removes witness requirement, required information on return ballot envelope.

The big picture

To date, we have tracked 1,701 election-related bills. These bills were either introduced this year or crossed over from last year’s legislative sessions. 

Legislative status 

The pie charts below show the legislative status of the bills we are tracking. The following status indicators are used: 

  • Introduced: The bill has been pre-filed, introduced, or referred to committee but has not otherwise been acted on.
  • Advanced from committee: The bill has received a favorable vote in committee. It has either advanced to another committee or to the floor for a vote. 
  • Passed one chamber: One chamber has approved the bill.
  • Conference committee: Chambers have passed differing versions of the bill, and a conference committee has been appointed to reconcile the differences. 
  • Passed both chambers: The bill has cleared both chambers of the legislature. 
  • Enacted: The bill has been enacted into law, by gubernatorial action or inaction or veto override. 
  • Vetoed: The bill has been vetoed. 
  • Dead: The bill has been defeated in committee or on the floor. 

The pie charts below show the legislative status of bills in Democratic and Republican trifectas, respectively. 

Concentration of activity

The map below shows the concentration of legislative activity across the nation. A darker shade of orange indicates a higher number of relevant bills that have been introduced. A lighter shade of orange indicates a lower number of relevant bills. 

Partisan affiliation of sponsor(s)

The pie chart below shows the partisan affiliation of bill sponsors.

Bills by topic

The chart below shows the topics of a sample of the 1,701 bills we have tracked this year. The number listed on the blue portion of each bar indicates the number of Democratic-sponsored bills dealing with the subject in question. The number listed on the red portion of the bar indicates the number of Republican-sponsored bills. The purple and gray portions of the bar indicate the number of bipartisan-sponsored bills and bills with unspecified sponsorship, respectively. Note that the sums of the numbers listed do not equal the total number of bills because some bills deal with multiple topics. Click here to see a full list of subject categories. 

Recent news

District court dismisses Arkansas redistricting case

On Feb. 22, U.S. District Judge Lee Rudofsky, who was appointed by President Donald Trump (R), dismissed a challenge to Arkansas’ state House districts. On Dec. 29, 2021, the Arkansas State Conference NAACP and the Arkansas Public Policy Panel sued the Board of Apportionment and its three members, Gov. Asa Hutchinson (R), Sec. of State John Thurston (R), and Atty. Gen. Leslie Rutledge (R). The plaintiffs sought “declaratory and injunctive relief prohibiting the implementation of [the new districts] on the ground that their members are irreparably harmed by living and voting in districts whose boundaries dilute Black voting strength.” Rudofsky said, “After a thorough analysis of the text and structure of the Voting Rights Act, and a painstaking journey through relevant caselaw, the Court has concluded that this case may be brought only by the Attorney General of the United States.” Rudofsky dismissed the case after the Justice Department declined to intervene. The new state House district maps went into effect Dec. 29, 2021.

Lawsuit challenges New York City Council districts

Petitioners represented by the Asian American Legal Defense and Education Fund sued in the New York City Supreme Court on Feb. 24 alleging that newly redrawn city council districts unfairly split local communities. The plaintiffs said, “The most recent example of unlawfully separating the Asian community came with the New York City Districting Commission certification of its 2022 redistricting plan splitting Richmond Hill/South Ozone Park into three city council districts — despite immense community support for a unified district.” In a Feb. 27 filing, Aimee K. Lulich, the attorney representing the Districting Commission, said the “petitioners cannot establish any of the requirements necessary for emergency injunctive relief,” adding, “An injunction of the Plan at this stage will result in considerable delay to the elections of 2023 and cost to the City and candidates.” The court has scheduled a hearing in the case for March 7. 



ICYMI: Top stories February 27-March 3

By Ballotpedia staff
In Newsletters
March 3, 2023 at 4:00 PM

Each week, we bring you a collection of the most viewed stories from The Daily Brew, condensed. Here are the top stories from the week of February 27-March 3.

California ends COVID-19 emergency, leaving five states with active orders

On Feb. 28, California Gov. Gavin Newsom (D) ended the statewide COVID-19 emergency order—1,091 days after issuing it on March 4, 2020. At the beginning of the pandemic, all 50 governors declared emergencies.

Throughout 2021 and 2022, most states ended their COVID-19 emergencies. As of this writing, five states have active emergencies:

  • Connecticut
  • Illinois
  • New Mexico
  • Rhode Island
  • Texas

New Mexico’s emergency was scheduled to end March 3. As of this writing on March 3, we have not seen that Gov. Michelle Lujan Grisham (D) has renewed the order. 

With the exception of Texas, the remaining states with emergencies related to the COVID-19 pandemic are Democratic trifectas, meaning Democrats control the governor’s office and both chambers of the legislature. New Mexico’s emergency will end on March 3, while Rhode Island’s is scheduled to end March 11. 

Read more

What’s next in the Chicago mayoral election 

Brandon Johnson and Paul Vallas advanced from Tuesday’s election and will face each other in a runoff on April 4. With 99% of the votes in, Vallas and Johnson received 33.8% and 20.3% of the votes, respectively.

Incumbent Lori Lightfoot finished in third place and did not advance to the runoff. She is the first Chicago mayor in 34 years not to win re-election. 

Nine candidates ran in the general election. 

Lightfoot received 17.1% of the vote, and U.S. Rep. Jesus “Chuy” Garcia (D) received 13.7%. No other candidate received more than 10% of the vote. 

Read more

Five noteworthy presidential candidates have declared for 2024, nine fewer than this point in the 2020 cycle

Last week, we added two noteworthy 2024 presidential candidates to our list: entrepreneur and author Vivek Ramaswamy (R), and author and 2020 presidential candidate Marianne Williamson (D). Our total tally currently stands at five noteworthy 2024 presidential candidates.

Ramaswamy joins former U.N. Ambassador Nikki Haley (R), former President Donald Trump (R), and former Montana Secretary of State Corey Stapleton (R) in the Republican primary. 

Williamson is the first Democratic candidate to have declared a campaign for the nomination. President Joe Biden (D) has yet to officially announce whether he intends to run for a second term.

At this point in the 2020 cycle, 14 noteworthy candidates had announced their campaigns.

Read more

A look at this year’s voter registration deadlines

Every state except North Dakota requires residents to register with election officials before voting.

This year, eight states are holding statewide elections for state executive, legislative, or judicial offices: Kentucky, Louisiana, Mississippi, New Jersey, Pennsylvania, Virginia, Washington, and Wisconsin.

This year’s earliest registration deadline has already passed. Wisconsin residents had until Feb. 17 to register to vote in the statewide primary on Feb. 21.

Wisconsin also has the next upcoming deadline: residents can register by mail or online until March 15 or in person until March 31 to participate in the April 4 general election.

Read more



Ballotpedia’s Donor Privacy and Disclosure Digest is back!

By Ballotpedia staff
In Newsletters
March 1, 2023 at 1:45 PM

Welcome back! If you have missed Ballotpedia’s coverage of nonprofit donor privacy and disclosure policy, you will be happy to hear we are debuting our first issue of Ballotpedia’s Donor Privacy and Disclosure Digest. This monthly newsletter provides news and information on key policy changes, a breakdown of state legislation, and an overview of pivotal legal decisions and case developments. In this issue, you’ll find:

  • Missouri lawmakers consider changes to donor privacy act: The Missouri House of Representatives debates modifications to the state’s Personal Privacy Protection Act.
  • In the courts: The latest on pivotal judicial decisions and developments across the country.
  • State by state: An analysis of this month’s state legislative activity, including bill status, topic, partisan sponsorship, and more. 
  • What we’re reading: Keep up to date on the stories and analyses we’ve been reading this month.
  • Dig deeper: Want more information on the topics covered in this issue? We’ve got you covered.

Missouri lawmakers consider changes to donor privacy act

On Feb. 27, the Missouri House of Representatives Special Committee on Government Accountability considered two bills that would modify provisions of the state’s Personal Privacy Protection Act. That law prohibited government agencies from disclosing information identifying a person as a member, supporter, or donor to a nonprofit organization. Supporters of the act say it protects donor privacy and encourages charitable giving. Critics say it prevents public access to state contracts, complicates tax credit program administration, and undermines law enforcement investigations. 

Rep. Dan Houx (R) originally introduced HB2400, a bill related to retirement and welfare benefits plans, on Jan. 11, 2022. The state House passed the bill unanimously on April 4, and the state Senate passed an amended version 27-6 on May 6, with 10 Democrats and 17 Republicans voting for the bill. The state House did not consent to the Senate amendments, and the Senate appointed a conference committee on May 10. Rep. Jered Taylor (R) offered an amendment to the bill containing the Personal Privacy Protection Act on May 12. Taylor said the act would “protect an individual’s right or ability to donate to a cause that they believe in.” The amended legislation received bipartisan support in the House, with 28 Democrats and 101 Republicans voting in favor of the bill on May 12. Gov. Mike Parson (R) signed the bill into law on June 30. 

Rep. Sean Pouche (R) introduced one of the bills that would modify the Personal Privacy Protection Act, HB667, on Jan. 5, 2023. Pouche’s bill would exempt certain types of personal information from the non-disclosure requirements. This includes personal information nonprofits submit to obtain “a contract, grant, permit, license, benefit, tax credit, incentive, status, or any other similar item,” and the “disclosure of personal information amongst law enforcement agencies pursuant to an active investigation.” 

Rep. Ben Baker (R) introduced the other bill, HB1064, on Feb. 7. Similar to HB667, Baker’s bill would allow the voluntary disclosure of personal information that nonprofits submit for the purpose of government tax credits and contracts, and it permits disclosure as part of an active law enforcement investigation. However, it would also allow government agencies to disclose information with the written permission of all individuals who might be identified through the release of that information. 

Testifying in Monday’s committee hearing, Hannah Swan of the Missouri Office of Administration said, “There are some differences between what was intended with (the Personal Privacy Protection Act) and what the law actually says,” adding, “Our goal is to create some exemptions to allow the state to conduct business. We’re not trying to collect donor lists, we just want to be able to conduct business.” 

Cass County official Ryan Johnson (R) said the original act should not be modified because it “does not, in any fundamental way, disrupt the status quo.” Jeremy Cady, state director for Americans for Prosperity, said the issue was with the interpretation of the existing act under the current administration, not with its language: “A number of states have passed similar laws. We haven’t seen these issues in other states. So we’re not entirely sure why this has become as much of an issue as it has been.” 

Missouri has a Republican trifecta, meaning Republicans control both legislative chambers and the governor’s office. Republicans have a 24-10 majority in the Missouri Senate and a 111-52 majority in the Missouri House of Representatives. 

In the courts

New court filings in Arizona lawsuit seeking to overturn disclosure proposition

On Feb. 17, defendants in a lawsuit to overturn Arizona Proposition 211, including Gov. Katie Hobbs (D) in her capacity as former secretary of state and the Arizona Citizens Clean Elections Commission, filed a motion to dismiss the case in the Maricopa County Superior Court. Proposition 211, which voters approved 72-28% on Nov. 8, 2022, requires that persons or entities that make an independent expenditure of $50,000 or more on a statewide campaign or $25,000 or more on a local campaign must disclose the names of the money’s original sources, defined as the persons or businesses that earned the money being spent. On Dec. 13, 2022, the Center for Arizona Policy, Inc. and the Arizona Free Enterprise Club sued Hobbs over Proposition 211’s constitutionality. The Goldwater Institute’s Scott Freeman, who represents the plaintiffs, said, “The act violates Arizonans’ right to speak freely by chilling donors from supporting causes they believe in and wish to support, lest their charitable giving become public knowledge.” Former Attorney General Terry Goddard (D), who supported the initiative, said, “If you or I have given $50 or more, our first and last names and addresses are reported. That’s not a violation. Why is this one different?”

State by state

Since Feb. 1, state legislatures have acted on 21 bills related to donor privacy and disclosure. These 21 bills represent 53.8% of the 39 bills we are tracking in 2023. In comparison, we tracked 77 bills throughout 2022. Four of these bills are from states with Democratic trifectas, 13 are from states with Republican trifectas, and four are from states with a divided government. Click here for a complete list of all the bills we’re tracking.

15 bills were introduced (or had pre-committee action).

  • Democratic trifectas: 4
  • Republican trifectas: 9
  • Divided governments: 2

5 bills passed one chamber (or had pre-adoption action in the second chamber). 

  • Republican trifectas: 3
    • IN HB1212: Privacy of nonprofit donor information.
    • IN SB0303: Privacy protections for nonprofit organizations.
    • ND HB1116: Relating to campaign contribution statements for candidates seeking a school district office.
  • Divided governments: 2
    • VA SB854: Campaign advertisements; independent expenditures, electioneering communications.
    • VA SB1427: Campaign finance; political action committees, certain large pre-election expenditures.

One bill was enacted. 

  • Republican trifectas: 1
    • WY SF0040: Federal political action committees-reports.
      • This bill exempts 501(c)(4) political action committees making contributions or expenditures only to federal candidates or for federal issues from contribution reporting requirements if the candidate or committee is already required to comply with federal election law.

The map below shows the concentration of this recent activity across the nation. A darker shade of green indicates a higher number of relevant bills that have been acted upon in the last week. A lighter shade of green indicates a lower number of bills that have been acted upon in the last week. 

The charts below show our analysis of tracked legislation by legislative status, partisan sponsorship, focus, and state trifecta status. 

What we’re reading

Keep up with the latest events in the world of donor privacy and disclosure policy by exploring the stories linked below. 

Dig deeper

Are you hungry for more information on the topics we covered in this edition? Dig deeper into these topics by checking out the following Ballotpedia pages:



Robe & Gavel: SCOTUS closes February sitting

By Ballotpedia staff
In Uncategorized
February 28, 2023 at 11:00 AM

Welcome to the Feb. 28 edition of Robe & Gavel, Ballotpedia’s newsletter about the Supreme Court of the United States (SCOTUS) and other judicial happenings around the U.S.

It’s the last week of our February sitting, gentle reader, and we have some new arguments coming your way. Let’s dig in, shall we?

Follow Ballotpedia on Twitter or subscribe to the Daily Brew for the latest news and analysis.

We #SCOTUS and you can, too!

Grants

SCOTUS has not accepted any new cases to its merits docket since our Feb. 21 edition.

Upcoming SCOTUS dates

Here are the court’s upcoming dates of interest:

  • Feb. 27, 2023: SCOTUS will hear arguments in one case.
  • Feb. 28, 2023: SCOTUS will hear arguments in two cases.
  • Mar. 1, 2023: SCOTUS will hear arguments in one case.
  • Mar. 3, 2023: SCOTUS will conference. A conference is a private meeting of the justices.

Arguments

The Supreme Court will hear three arguments this week. Click here to read more about SCOTUS’ current term.

Click the links below to learn more about these cases:

Feb. 27, 2023

Dubin v. United States concerns the legal standard to prove aggravated identity theft, and a Medicaid fraud claim.

  • The questions presented: “Whether a person commits aggravated identity theft any time he mentions or otherwise recites someone else’s name while committing a predicate offense.”
    • A predicate offense is a crime that may be considered a component of a larger crime.

Feb. 28, 2023

Biden v. Nebraska concerns the Biden Administration’s student loan debt relief program.

  • The questions presented: “(1) whether respondents [the state of Nebraska] have Article III standing, and (2) whether the plan exceeds the [Education] Secretary’s statutory authority or is arbitrary and capricious.”

Department of Education v. Brown concerns the Biden Administration’s student loan debt relief program.

  • The questions presented: “(1) Whether respondents [Myra Brown and Alexander Taylor] have Article III standing; and (2) Whether the Department’s plan is statutorily authorized and was adopted in a procedurally proper manner”

Mar. 1, 2023

New York v. New Jersey concerns New York and New Jersey’s Waterfront Commission Compact and the Waterfront Commission of New York Harbor.

  • The questions presented: “Whether the Supreme Court should issue declaratory judgment and/or enjoin New Jersey from withdrawing from its Waterfront Commission Compact with New York, which grants the Waterfront Commission of New York Harbor broad regulatory and law-enforcement powers over all operations at the Port of New York and New Jersey.”

During the 2021-2022 term, the court agreed to hear 68 cases. Four cases were dismissed and one case was removed from the argument calendar.

Opinions

SCOTUS has ruled on three cases since our Feb. 21 edition. The court has issued rulings in five cases so far this term. Fifty-five cases are still under deliberation.

Click the links below to read more about the specific cases SCOTUS ruled on since our previous edition:

Feb. 22, 2023

Helix Energy Solutions Group, Inc. v. Hewitt  was argued before the court on Oct. 12, 2022.


The case: Michael Hewitt was a supervisor for Helix Energy Solutions Group’s (Helix) offshore oil and gas operations from 2015 to 2017. During that time, he earned more than $200,000 per year through a daily rate of at least $963. Hewitt filed a lawsuit against Helix, claiming he was entitled to overtime pay under the Fair Labor Standards Act (FLSA). The district court ruled he was exempt from overtime pay. On appeal, the 5th Circuit ruled that he was not exempt. Helix appealed to the U.S. Supreme Court.


The outcome: The court affirmed the decision of the United States Court of Appeals for the 5th Circuit in a 6-3 ruling, holding that Michael Hewitt was not an executive exempt from the Fair Labor Standards Act’s overtime pay guarantee; daily-rate workers, of whatever income level, qualify as paid on a salary basis only if the conditions set out in §541.604(b) are met. Justice Elena Kagan delivered the majority opinion of the court. Justice Neil Gorsuch and Justice Brett Kavanaugh filed a dissenting opinion, joined by Justice Samuel Alito.

Cruz v. Arizona  was argued before the court on Nov. 1, 2022.

The case: John Montenegro Cruz was sentenced to death in 2005. Cruz argued that he was unable to inform the jury that if he were given a sentence of life in prison, he would be ineligible for parole. After several appeals, Cruz petitioned the U.S. Supreme Court to review his case. Cruz argued the Arizona Supreme Court violated U.S. Supreme Court precedent from two previous cases.

The outcome: The court ruled to vacate and remand the decision of the Arizona Supreme Court in a 5-4 ruling. According to the Arizona Rule of Criminal Procedure 32.1(g), petitioners can challenge their sentences if “there has been a significant change in the law that, if applicable to the defendant’s case, would probably overturn the defendant’s judgment or sentence.” Referencing Lynch v. Arizona, Cruz appealed his sentencing to the Arizona Supreme Court, arguing that Lynch v. Arizona created a significant change in the law. The Arizona Supreme Court disagreed and found that Cruz was not entitled to post-conviction relief.

If a case originated from a state court, the Supreme Court usually will not make rulings on questions of federal law if the state court’s decision can be supported by an “adequate and independent state-law ground for the judgment.” In Cruz v. Arizona, the state of Arizona argued that the Arizona Supreme Court’s decision to deny Cruz post-conviction relief constituted as an adequate and independent state-law ground for the judgment. The Supreme Court rejected this argument. The Court’s decision invalidated Arizona’s ruling denying Cruz post-conviction relief and allows Cruz to receive a new sentencing hearing where he will be able to inform the jury that if he were given a sentence of life in prison, he would be ineligible for parole.

  • To vacate a case means to void, cancel, nullify, or invalidate a verdict or judgment of a court.
  • To remand means to return a case or claim to a lower court for additional proceedings.

Bartenwerfer v. Buckley was argued before the court on Dec. 6, 2022.

The case: The case concerns a bankruptcy debtor’s liability for another individual’s fraud, even if the debtor was unaware of the fraud.

The outcome: The court affirmed the lower court’s ruling by a vote of 9-0. The court held pursuant to Section 523(a)(2)(A) of the Bankruptcy Code, a debtor like Kate Bartenwerfer who is liable for her partner’s fraud cannot discharge that debt in bankruptcy, regardless of her own culpability.

Federal court action

Nominations

President Joe Biden has announced three new Article III nominees since our Feb. 21 edition.

Since taking office in January 2021, President Joe Biden has nominated 152 individuals to Article III positions. For more information on the president’s judicial nominees, click here.

Confirmations

The U.S. Senate has confirmed no new nominees since our previous edition.

As of Jan. 1, 2023, the Senate had confirmed 105 of President Biden’s judicial nominees—74 district court judges, 30 appeals court judges, and one Supreme Court justice.

Comparison of Article III judicial appointments over time by president (1981-Present)

  • Presidents have appointed an average of 90 judges through Feb. 1 of their third year in office.
  • President Bill Clinton (D) made the most appointments through Feb. 1 of his third year with 128. President Barack Obama (D) made the fewest with 62.
  • President Donald Trump (R) made the most appointments through four years with 234. President Ronald Reagan (R) made the fewest through four years with 166.
  • President Ronald Reagan (R) made the most appointments through one year in office with 41. President Barack Obama (D) made the fewest with 13.
  • President Bill Clinton (D) made the most appointments through two years with 128. President Barack Obama (D) made the fewest with 62.

Vacancies

The federal judiciary currently has 86 vacancies, 84 of which are for lifetime Article III judgeships. As of publication, there were 40 pending nominations.

According to the Administrative Office of U.S. Courts, there are 24 upcoming vacancies, where judges have announced they will leave active status.

For more information on judicial vacancies during President Biden’s term, click here.

Do you love judicial nomination, confirmation, and vacancy information? We figured you might. Our monthly Federal Vacancy Count monitors all the faces and places moving in, moving out, and moving on in the federal judiciary. Click here for our most current count.

Need a daily fix of judicial nomination, confirmation, and vacancy information? Click here for continuing updates on the status of all federal judicial nominees.

Or, keep an eye on our list for updates on federal judicial nominations.

Looking ahead

We’ll be back on Mar. 6 with a new edition of Robe & Gavel. Until then, gaveling out! 

Contributions

Myj Saintyl compiled and edited this newsletter, with contributions from Samantha Post.



ICYMI: Top stories of the week

By Ballotpedia staff
In Newsletters
February 24, 2023 at 3:36 PM
WeeklyBrewHeader.png

A look at the higher education background of top state executives

Of the 192 officeholders currently occupying the top four executive positions in each state—governor, lieutenant governor, attorney general, and secretary of state—184 have a bachelor’s degree, 58 have a master’s degree, and 93 have a law degree. Nine such officeholders have a Ph.D., and one has a medical degree. Eight state executives do not list holding a higher education degree in their official biography.

Read more

Seattle voters approve Initiative 135, creating the Social Housing Developer

This citizen-initiated measure creates the Seattle Social Housing Developer, a public development organization that will own, develop, and maintain what the initiative describes as social housing. Under Initiative 135, the public developer’s housing units will be available to those with incomes up to 120% of the area median income of $120,907. Rent is limited to 30% of the household income.

Read more

A look at Tuesday’s Wisconsin Supreme Court primary results

Milwaukee County Circuit Judge Janet Protasiewicz and former Wisconsin Supreme Court Justice Daniel Kelly advanced from Tuesday’s primary, defeating Waukesha County Circuit Judge Jennifer Dorow and Dane County Circuit Judge Everett Mitchell. Protasiewicz received 46.5% of the vote, and Kelly received 24.2%. 

Read more

Update on this year’s and next year’s ballot measure certifications

As of Feb. 21, 2023, five statewide measures had been certified for the ballot in three states for elections in 2023. For 2024, 11 statewide measures have been certified in five states. Here’s an update on the latest ballot measure activity.

One new measure was certified for the ballot last week:

  1. Utah Elections of County Sheriffs Amendment

Signatures have been submitted and are pending verification for two initiatives in Maine and Michigan:

  1. Maine “Right to Repair Law” Vehicle Data Access Requirement Initiative (2023)
  2. Michigan $15 Minimum Wage Initiative (2024)

Signatures were verified for four indirect initiatives in Maine and Ohio, and the initiatives are now before legislators:

  1. Maine Creation of Pine Tree Power Company Initiative (2023)
  2. Maine Prohibit Foreign Spending in Elections Initiative (2023)
  3. Maine Voter Approval of Borrowing Above $1 Billion by State Entities and Electric Cooperatives Initiative (2023)
  4. Ohio Marijuana Legalization Initiative (2023)

Read more

Learn everything you need to know about the school board primaries in Oklahoma (and more!) with On the Ballot

On the Ballot, our weekly podcast, takes a closer look at the week’s top political stories.

In this week’s episode, host Victoria Rose and Ballotpedia’s Marquee Staff Writer Doug Kronaizl talk about the school board primaries that just took place in Oklahoma, as well as results in the Wisconsin Supreme Court primary that took place on Feb. 21. 

Listen here



Economy and Society, February 21, 2023: Will Congress block Biden’s ESG retirement plan rule?

By Ballotpedia staff
In Uncategorized
February 21, 2023 at 1:57 PM

Economy and Society is Ballotpedia’s weekly review of the developments in corporate activism; corporate political engagement; and the Environmental, Social, and Corporate Governance (ESG) trends and events that characterize the growing intersection between business and politics.

ESG Developments This Week

In Washington, D.C

Will Congress block Biden’s ESG retirement plan rule?

According to Bloomberg Law, Republicans in the Senate have been trying to garner commitments from their colleagues to prevent the Biden Labor Department from implementing its rule permitting ESG considerations in retirement plans or to force the president to veto their efforts. Every Republican in the Senate and Sen. Joe Manchin (D-W.Va.) expressed they would support a resolution under the Congressional Review Act opposing the rule, meaning one more vote would be necessary to block it. Sen. Angus King (I-Maine), who caucuses with Democrats, and Sen. Jon Tester (D-Mont.) have said they have not decided how to vote:

The fate of a Republican push to overturn a Biden administration rule on socially conscious retirement investing hinges on a single vote in the Senate as moderate lawmakers up for reelection in 2024 evaluate their options.

Sen. Mike Braun (R-Ind.) has pledged to bring a resolution to the floor under the Congressional Review Act to block the rule after next week’s recess. The resolution would overturn the Department of Labor regulation that permits retirement plans to consider environmental, social, and corporate governance factors on behalf of plan participants.

Braun’s resolution already has the support of every Republican senator, plus West Virginia Democrat Joe Manchin. Independent Sen. Angus King (Maine), who caucuses with Democrats, and Jon Tester (D-Mont.) said this week they haven’t decided how they’ll vote.

If both the Senate and House pass the resolution, it could force President Joe Biden to use the administration’s first veto, and amplify a debate that has already spilled over into the courts and equated ESG with “woke” liberal politics. Moderate critics say that sets a dangerous precedent for economic evaluations, and ultimately could put millions of American retirement savers at a disadvantage. …

Resolutions under the CRA to overturn executive action require only a simple majority, allowing Republicans to circumvent the usual 60-vote filibuster-proof margin required to pass most legislation in the Senate. Democrats can’t afford a single extra detraction if they want to uphold the Biden’s administration rule and avoid a Republican win on the issue.

“We got every Republican and Joe Manchin on it, so we’re looking for one more Democrat,” Braun said. “We’re working on that, but we won’t know for sure until it hits the floor.”

King said Tuesday he needed more time to consider the issue. Last week, he expressed some concerns about ESG investment in retirement plans. Those plans have a fiduciary duty to maximize return, he said.

“If people want to make their own decisions about how they invest, that’s one thing. But if it’s a fund of other people’s money, I think their role is maximizing return, not affecting social policy,” King said.

Tester said he still needs to look into the DOL rule for clearer understanding of whether it requires or recommends the ESG consideration. That distinction, he said, “makes a big difference.”

Senator Manchin explains his opposition to the Labor Department’s ESG investing rule

As noted above, West Virginia Sen. Joe Manchin is the only Democrat so far who has joined Republicans in opposing the Labor Department’s ESG retirement investment rule. Manchin explains that he dissented from his Democratic colleagues because, in his view, focusing narrowly on ESG investing criteria threatens energy production and security:

Sen. Joe Manchin III is offering a word of caution for enthusiasts of environmental, social and governance investing, or ESG, saying that the practice of considering climate change and other political matters in investments could threaten energy security amid geopolitical risks from Russia.

The Russia-Ukraine war, the conservative West Virginia Democrat said, underscores the need to have a balance between investing in both clean energy and fossil fuels, rather than leaning on ESG, which conservatives call a form of “woke capitalism.”

“Colleges, universities, you have different investment firms — they’re looking only at ESG and not geopolitical risks. They’re not being reasonable [or] practical,” Mr. Manchin told The Washington Times. “If you hang your hat on one thing, without the geopolitical risks — just ask Europe what they’ve gone through.”

He emphasized that he is “not criticizing ESG and the overall consideration of ESG and [our] responsibilities” to address climate change.

Rather, Mr. Manchin said both ESG and geopolitical risks “should be considered when we’re making decisions on the energy of our country and energy that our allies need [and] how we’re going to produce that.”

Mr. Manchin’s remarks came as the Senate Energy and Natural Resources Committee, which he chairs, examined the state of global energy security roughly one year after Russia invaded Ukraine. His concerns also came amid a multibillion-dollar campaign by Republican-led states to divest public funds from investment firms such as BlackRock that practice ESG.

He questioned European Commission Director-General for Energy Ditte Juul Jorgensen during a hearing held by his panel Thursday whether she felt Europe has put too many of its eggs in the ESG basket by being heavily reliant on Russian oil and natural gas.

She responded that while ESG will remain prevalent, the war has forced them to refocus more financing on overall energy security, regardless of its climate impact.

In the states

Florida governor proposes legislation prohibiting discrimination based on social credit, opposing ESG in state and local governments

Florida Governor Ron DeSantis (R) announced a legislative proposal on February 13 that would prohibit banks from discriminating against individuals based on social credit factors (such as political support for fossil fuel production or gun ownership), among other provisions opposing ESG considerations in state and local governments:

Today, Governor Ron DeSantis was joined by Senate President Kathleen Passidomo and House Speaker Paul Renner to announce comprehensive legislation to protect Floridians from the woke environmental, social, and corporate governance (ESG) movement that continues to proliferate throughout the financial sector. More on today’s proposal can be found here. To watch the full press conference, click here.

“Today’s announcement builds on my commitment to protect consumers’ investments and their ability to access financial services in the Free State of Florida,” said Governor Ron DeSantis. “By applying arbitrary ESG financial metrics that serve no one except the companies that created them, elites are circumventing the ballot box to implement a radical ideological agenda. Through this legislation, we will protect the investments of Floridians and the ability of Floridians to participate in the economy.”

Later in the week, The Bond Buyer explained how the legislation could affect issuers of municipal bonds:

The municipal bond market has always operated at the intersection of politics and finance, but lately politics seem to have taken center stage.

The latest salvo comes from Florida Gov. Ron DeSantis’ announcement this week that The Sunshine State would move to ban local and state issuers from consideration of environmental, social and governance factors when floating bonds. That includes a “contract prohibition on ratings agencies whose ESG ratings negatively impact the issuer’s bond ratings,” the governor’s office said in a press release.

“We’re going to make sure that ESG is not infecting other decisions at both the state and local governments,” DeSantis said Monday at a press conference with state legislative leaders….

State attorneys general continue the pushback against ESG

Bloomberg Law argued on February 13 that state attorneys general are the new players in the state-level pushback against ESG after state financial officers (like treasurers and auditors) dominated most of the state-level pushback in 2022:

New state attorneys general have quickly found themselves in the ESG wars, with many officials deploying their broad investigative and enforcement powers just weeks on the job.

New Republican attorneys general in Iowa, Arkansas and several other states already are challenging environmental, social and governance investing with a lawsuit against the Labor Department and a letter that assailed proxy advisory firms Institutional Shareholder Services Inc. and Glass, Lewis & Co., among other actions. On the Democratic side, Arizona’s new attorney general, Kris Mayes said Monday her state would exit ESG investigations into big banks and other financial firms that her Republican predecessor probed.

The speed in which new Republican attorneys general have jumped on ESG isn’t surprising given how public and polarizing the topic has become, said Jason Downs, a co-chair of the state attorneys general and ESG groups at Brownstein Hyatt Farber Schreck LLP. Attorneys general can fight ESG in ways that even a House with a new Republican majority can’t, he said.

“State attorneys general hold the most power because of their enforcement authority,” Downs said.

Republicans have repeatedly warned the Securities and Exchange Commission, asset manager BlackRock Inc. and others that their ESG investing policies and rules may violate state and federal laws. ESG is a top-of-mind issue for Republican attorneys general when they talk, said Iowa Attorney General Brenna Bird, who ousted a Democratic incumbent….

In January, Republican attorneys general from 21 states challenged Glass Lewis and ISS over the firms’ voting advice to shareholders considering proposals on climate change, board diversity and other ESG issues at companies’ annual meetings. The letter says the firms’ recommendations aren’t material to investors and “may threaten the economic value” of their states’ investments and pensions. Both firms have disputed the claims from the attorneys general.

Arkansas’ Tim Griffin was among the six new attorneys general who signed the letter. It went out a week after Griffin became attorney general.

ESG awareness is growing among his constituents, who are worried, Griffin told Bloomberg Law. ESG can hinder a company’s ability to operate efficiently and innovate, he said.

“I’ve heard all the arguments about, well, no, this is another way to reach value, right? This is another way of viewing value as opposed to ‘values,’” Griffin said. “I don’t buy it.”

Republican attorneys general teamed up again on a lawsuit to block a Labor Department retirement investment rule that enables private-sector employers to consider ESG factors when choosing pension investments. The lawsuit, filed in the US District Court for the Northern District of Texas in January, alleges that the rule prioritizes “ill-defined” ESG concepts. A senior Labor Department official said the rule isn’t an investment mandate and only was intended to clarify that ESG factors were as important as any other material risk-return consideration, but not more so.

In the spotlight

Activists sue individual corporate directors for failing to meet ESG goals

The activist organization ClientEarth has started suing individual corporate directors for failing to live up to ESG ideals and promises. MLT Akins, a Canadian law firm, recently documented and described the shift of ESG support into the sphere of personal litigation:

In March 2022, ClientEarth – a group of environmental lawyers who are shareholders of energy giant Shell plc – threatened to take legal action against Shell’s directors, alleging they were personally liable for the company’s failure to set meaningful emissions targets.

ClientEarth has now made good on that threat. On February 9, 2023, ClientEarth announced it had filed a lawsuit against Shell’s 11 directors, marking the first time shareholder activists have sought to hold the directors of a company personally liable for an allegedly unrealistic net zero plan. Notably, the group has the support of institutional investors holding more than 12 million shares in Shell.

ClientEarth says Shell’s directors breached their duties under the UK’s Companies Act by failing to create an energy transition strategy that aligns with the Paris Agreement. Specifically, ClientEarth alleges that Shell’s net zero plan lacks short- and medium-term targets to reduce Scope 3 emissions, which account for more than 90% of Shell’s emissions. ClientEarth also claims Shell will cut its emissions by only 5% by the year 2030, despite being ordered to slash emissions by 45% by a Dutch court in 2021.

ClientEarth is asking the High Court of England and Wales to order Shell’s directors to implement a climate strategy that meets the requirements of the Companies Act and satisfies the Dutch court order.

It’s not just directors who run the risk of facing personal liability – corporate officers may also be held personally liable for ESG oversights following a recent landmark ruling in the U.S.

In January, the Delaware Court of Chancery ruled that shareholders of McDonald’s can sue former chief people officer David Fairhurst over allegations that he turned a blind eye to sexual misconduct by the company’s former CEO, thereby allowing sexual harassment to spread through the workplace.

According to Reuters, Fairhurst argued he couldn’t be sued because Delaware judges had always held that oversight obligations resided with directors, not officers. But the Court found it was “illogical” to assume that officers have no duty of oversight.



SCOTUS hears argument in case challenging scope of NLRB authority

By Ballotpedia staff
In Newsletters
February 21, 2023 at 10:00 AM

The Checks and Balances Letter delivers news and information from Ballotpedia’s Administrative State Project, including pivotal actions at the federal and state levels related to the separation of powers, due process, and the rule of law.

This edition: 

In this month’s edition of Checks and Balances, we review oral argument in a U.S. Supreme Court case challenging the scope of authority of the National Labor Relations Board; a ruling from the U.S. Court of Appeals for the Federal Circuit upholding the constitutional appointment of the Merit Systems Protection Board’s administrative law judges; a review of Congressional Review Act resolutions filed so far in the 118th Congress; and bipartisan support for legislation in the U.S. House of Representatives concerning agency rulemaking and settlement agreements.

At the state level, we take a look at an agency due process challenge before the Arizona Supreme Court; a vote by Florida lawmakers to increase the governor’s authority concerning certain immigration issues; and activity in Ohio and Nevada addressing occupational licensing.

We also highlight recent commentary from William Yeatman and Adi Dynar on what the scholars view as a vertical divide on Chevron deference in the federal courts. We wrap up with our Regulatory Tally, which features information about the 168 proposed rules and 235 final rules added to the Federal Register in January and OIRA’s regulatory review activity.

In Washington

SCOTUS hears argument in case challenging scope of NLRB authority

What’s the story?

The U.S. Supreme Court on January 10, 2023, heard oral argument in Glacier Northwest Inc. v. International Brotherhood of Teamsters Local Union 174, a case that could limit the authority of the National Labor Relations Board (NLRB) to adjudicate certain labor-related disputes.

After a portion of its concrete supply spoiled due to a 2017 worker strike, concrete company Glacier Northwest Inc. sued the Teamsters union in Washington state court, arguing in part that the union violated state tort law by intentionally timing the strike to maximize property damage. The Washington Supreme Court dismissed the challenge, claiming that the labor dispute under the federal National Labor Relations Act (NLRA) preempts the state tort claim and, therefore, the case should be adjudicated before the NLRB. Glacier appealed the decision to the U.S. Supreme Court, arguing in part “that intentional property destruction falls outside the realm of lawful conduct protected by the NLRA,” according to the petition.

“The justices from the conservative wing remained relatively quiet, allowing the three more liberal justices to dominate the argument,” wrote SCOTUSblog analyst Sharon Block. The justices raised questions about the possibility of the NLRB and the state court making different legal conclusions, whether directing the case to the state court would make the NLRB’s adjudication procedures irrelevant, and whether Congress intended for the NLRB to have primary jurisdiction in such disputes.

A ruling in the case is expected in the summer of 2023. A separate unfair labor practices charge brought by the Teamsters against Glacier Northwest, which claims that the company brought the tort action in retaliation for the strike, is also pending before the NLRB.

Want to go deeper?

Federal Circuit finds MSPB judges are constitutionally appointed

What’s the story?

The U.S. Court of Appeals for the Federal Circuit on January 17, 2023, refused a rehearing in McIntosh v. Department of Defense, finalizing its November 2022 holding that the administrative law judges (ALJs) of the Merit Systems Protection Board (MSPB) are constitutionally appointed.

Former Defense Department employee Elfina McIntosh filed a complaint with the MSPB arguing that the department unlawfully fired her in 2017 in retaliation for her whistleblowing activity. The board upheld McIntosh’s removal and she appealed to the Federal Circuit. McIntosh argued in part that the MSPB ALJ assigned to her case was unconstitutionally appointed pursuant to the U.S. Supreme Court’s 2018 decision in Lucia v. Securities and Exchange Commission (SEC), which found that the SEC’s ALJs are officers of the United States and, as such, must be appointed by the president, the courts, or agency heads according to the U.S. Constitution’s appointments clause.

The three-judge panel of the Federal Circuit in November disagreed with McIntosh, finding in part that the MSPB’s ALJs do not constitute principal officers because their decisions are not final and can be reviewed by the board. Moreover, the court found that the ALJs’ protections against removal do not solely qualify them as principal officers. Since the MSPB board in March 2022 ratified all prior appointments of its ALJs, the court deemed unnecessary any further examination of whether ALJs constitute inferior officers.

McIntosh can appeal the decision to the U.S. Supreme Court but no appeal had been filed as of February 16, 2023.

Want to go deeper?

CRA resolutions seek to nullify environmental, fiduciary rules

What’s the story?

Federal lawmakers in the 118th Congress have filed Congressional Review Act (CRA) resolutions aimed at nullifying certain administrative rules issued under the Biden administration and preventing agencies from issuing similar rules in the future. The selection of CRA resolutions below addresses rules on topics ranging from environmental to fiduciary regulation:

  • ESG in retirement plans: A bipartisan coalition of 50 U.S. senators led by U.S. Senator Mike Braun (R-Ind.) introduced a CRA resolution on February 7, 2023, aiming to nullify a rule from the U.S. Department of Labor allowing retirement plans to consider certain environmental, social, and corporate governance (ESG) factors in investment-related decisions. “President Biden is jeopardizing retirement savings for millions of Americans” by encouraging “fiduciaries to make decisions with a lower rate of return for purely ideological reasons,” argued Braun in a statement.
  • Waters of the United States: U.S. Senator Shelley Moore Capito (R-W.Va.), joined by 48 Republican cosponsors, filed a CRA resolution on February 2, 2023, aiming to nullify the Environmental Protection Agency’s (EPA) revised Waters of the United States rule, which largely restores the Obama-era regulatory framework under the Clean Water Act. “With its overreaching navigable waters rule, the Biden administration upended regulatory certainty and placed unnecessary burdens” on Americans, argued Capito in a statement.
  • Federal funding of non-citizen voting: U.S. Senators Tom Cotton (R-Ark.) and Ted Cruz (R-Texas) filed separate CRA resolutions, joined by Republican cosponsors, that both aim to nullify a law enacted by the council of the District of Columbia (D.C.) allowing certain non-citizens to vote in local elections. “Allowing illegal immigrants to vote is an insult to every voter in America,” Cotton told Fox News Digital.
  • Solar tariff waiver: U.S. Representative Bill Posey (R-Fla.), joined by a bipartisan coalition, introduced a CRA resolution on January 26, 2023, aimed at nullifying a rule from the U.S. Department of Commerce that suspends certain import tariffs on solar panels from four Southeast Asian countries that use Chinese-manufactured components. “We cannot allow foreign solar manufacturers to violate trade law, especially when it comes at the expense of American workers and businesses,” said Representative Dan Kildee (D-Mich.) in a statement.

The CRA as of February 2023 has been used to repeal 20 administrative agency rules, including one rule repealed under President George W. Bush (R), 16 rules repealed under President Donald Trump (R), and three rules repealed under President Joe Biden (D).

Want to go deeper?

House bills on agency rulemaking, settlement agreements garner bipartisan support

What’s the story?

U.S. Representative Ben Cline (R-Va.), joined by Rep. Jared Golden (D-Maine ) and five Republican cosponsors, on January 13, 2023, filed the Ensuring Accountability in Agency Rulemaking Act—a bill that aims to require that all agency rules be initiated and issued by Senate-confirmed agency officials. 

Cline states that the bill is a response to a 2019 study by the Pacific Legal Foundation (PLF) finding that the majority of rules promulgated by the Food and Drug Administration (FDA) and other agencies between 2001 and 2017 were issued by lower-level, non-Senate-confirmed officials. U.S. Supreme Court precedent in Buckley v. Valeo (1976) and Edmond v. United States (1977), according to PLF, requires that only principal agency officers can issue rules with the force and effect of law.

Cline told Fox News that he and Golden “share an outlook on overreaching executive branch authority, and I think we’re trying to solve a problem here that’s … affecting the daily lives of Americans.”

In other bipartisan action, the House on January 24, 2023, unanimously approved the Settlement Agreement Information Database (SAID) Act (H.R. 300)—legislation that would make all agency settlement agreements, such as those issued in a process known as sue and settle, publicly available. ​​Rep. Jamie Raskin (D-Md.) told Government Executive that the bill would help prevent agencies from entering into “secret sweetheart settlements with certain litigants.”

Want to go deeper?

In the states

Arizona Supreme Court considers whether state agency procedures satisfy due process

What’s the story? 

A case pending before the Arizona Supreme Court questions whether proceedings before the Arizona Citizens Clean Election Commission satisfy due process if the commission can act as the judge in its own case.

In Legacy Foundation Action Fund v. Arizona Citizens Clean Election Commission, the state’s election commission (headed by five appointed members) alleged that certain political advertisements run by the Legacy Foundation violated state law. The foundation disagreed, arguing that the commission lacked jurisdiction in the case. A state administrative law judge (ALJ) agreed with the foundation but the commission overrode the ALJ’s ruling in favor of the commission’s view. The foundation attempted to challenge the ruling but the commission cited the principle of res judicata to argue that its decision constituted a final administrative order.

The foundation later moved to challenge the commission’s jurisdictional claim in the Arizona state courts, but lower courts dismissed the case on the grounds that the foundation had missed the deadline to appeal the commission’s final order. The Arizona Supreme Court heard oral argument in November 2022 and, according to the public policy legal organization Goldwater Institute, has since asked the group “for a new set of briefs to discuss whether the Commission’s actions in overriding the original judge and declaring itself the winner violated the basic principles of due process.”

Want to go deeper?

Florida lawmakers increase governor’s immigration authority

What’s the story? 

Florida lawmakers on February 10, 2023, voted along party lines to approve special session legislation that expands executive authority in the state by granting the governor’s office the power to use taxpayer funds to transport individuals residing in the United States without legal permission. Governor Ron DeSantis (R) signed the bill into law on February 15, 2023. 

The law established the Unauthorized Alien Transport Program within the governor’s office. The program allows the governor to use taxpayer funds to transport individuals residing anywhere in the United States without legal permission—not only individuals in Florida. The law aimed to clarify gubernatorial authority in the state after DeSantis used funds in September 2022 to transport a group of such individuals located in San Antonio, Texas, to Massachusetts. The move prompted legal action questioning whether DeSantis had violated state law, which limited the governor’s authority at the time to the transportation of individuals residing in Florida without legal permission.

State Sen. Blaise Ingoglia (R), the sponsor of the bill, argued that the legislation aims to relocate such individuals “to areas that have sanctuary policies so that they can get the services that they need” and to demonstrate their belief “that the federal government needs to get their act together and solve this problem,” according to NPR.

Democratic lawmakers objected to the bill, arguing in part that immigration policy falls under the purview of the federal government. “There’s no one at this table who will say Joe Biden is doing a great job with immigration,” state Rep. Jason Pizzo (D) told CNN. “However, it’s their authority.”

Want to go deeper?

Ohio and Nevada take action on occupational licensing

What’s the story? 

Ohio and Nevada in January took legislative and executive action, respectively, aimed at addressing state occupational licensing requirements. 

After nearly unanimous passage by the Ohio General Assembly, Governor Mike DeWine (R) signed Senate Bill 131 on January 2, 2023, requiring state licensing authorities to recognize occupational licenses issued in other states. Ohio’s action raised the total number of states that recognize out-of-state occupational licenses to 20, according to research by the Cato Institute.

Nevada Governor Joe Lombardo (R) issued two executive orders on January 12, 2023, aimed at freezing and suspending new regulations related to occupational licensing in the state. The orders demonstrate Lombardo’s “commitment to streamlining regulations and licensing processes in Nevada,” according to a statement issued by the governor’s office.

Want to go deeper?

A vertical divide on Chevron deference

William Yeatman and Adi Dynar of the Pacific Legal Foundation argued in a recent post for the Yale Journal on Regulation’s Notice and Comment blog that inconsistent approaches to Chevron deference by the U.S. Department of Justice have created what the authors refer to as a vertical divide on Chevron in the federal courts:

“Irrespective of whether the Justice Department is coordinating these inconsistent Chevron claims at different stages of litigation, the important point is that the dichotomous arguments facilitate a vertical split over Chevron. In the lower courts, Justice Department lawyers abet overbroad readings of Chevron. Yet if one of these Chevron controversies comes before the Supreme Court, the Solicitor General tries to take deference off the table. That, in turn, increases the likelihood that the doctrine will remain unchecked below, where judges remain receptive to calls for generous Chevron deference. Thus, the Justice Department is driving a vertical deference divide in the federal courts.”

Want to go deeper? 

  • Click here to read the full text of “The Justice Department Is Driving a Vertical Split over Chevron” by William Yeatman and Adi Dynar

Regulatory tally

Federal Register

Office of Information and Regulatory Affairs (OIRA)

OIRA’s January regulatory review activity included the following actions:

  • Review of 39 significant regulatory actions. 
  • Thirty-nine rules approved with recommended changes
  • As of February 1, 2023, OIRA’s website listed 111 regulatory actions under review.
  • Want to go deeper? 


The Ballot Bulletin: Ballotpedia’s Weekly Digest on Election Administration, February 17, 2023

By Ballotpedia staff
In Newsletters
February 17, 2023 at 4:30 PM

In today’s issue, you’ll find: 

  • Legislative activity: About the bills acted on this week. 
  • The big picture: 
    • Legislative status: The number of bills introduced, voted on, or enacted into law.
    • Concentration of activity: The states that have seen the most legislative activity.
    • Partisan affiliation of sponsorship: The number of bills that Democrats and Republicans have sponsored. 

Legislative activity

Since Feb. 10, state legislatures have acted on 289 bills, a 17.6% decrease from last week’s 351 bills. These 289 bills represent 19.7% of the 1,466 pieces of legislation we are currently tracking. Ninety-seven of these bills are from states with Democratic trifectas, 133 are from states with Republican trifectas, and 59 are from states with divided governments.

221 bills were introduced (or had pre-committee action).

  • Democratic trifectas: 91
  • Republican trifectas: 87
  • Divided governments: 43

28 bills advanced from committee. 

  • Democratic trifectas: 3
  • Republican trifectas: 14
  • Divided governments: 11

34 bills passed one chamber (or had pre-adoption action in the second chamber). 

  • Democratic trifectas: 3
  • Republican trifectas: 27
  • Divided governments: 4

Six bills passed both chambers. Those bills, with their official bill titles, are:

  • Republican trifectas: 5
    • SD HB1057: Allow for the appointment of county coroner by all counties.
    • SD HB1062: Clarify the convening of recount boards for primary elections.
    • WY HB0005: Voter registry list-voter ID and absentee ballots.
    • WY HB0047: Election equipment-federal certification.
    • WY HB0079: Voter I.D.-concealed carry permit.
  • Divided governments: 1
    • VA SB1151: Local government; standardization of public notice requirements for certain intended actions.

The big picture

To date, we have tracked 1,466 election-related bills. These bills were either introduced this year or crossed over from last year’s legislative sessions. 

Legislative status 

The pie charts below show the legislative status of the bills we are tracking. The following status indicators are used: 

  • Introduced: The bill has been pre-filed, introduced, or referred to committee but has not otherwise been acted on.
  • Advanced from committee: The bill has received a favorable vote in committee. It has either advanced to another committee or to the floor for a vote. 
  • Passed one chamber: One chamber has approved the bill.
  • Conference committee: Chambers have passed differing versions of the bill, and a conference committee has been appointed to reconcile the differences. 
  • Passed both chambers: The bill has cleared both chambers of the legislature. 
  • Enacted: The bill has been enacted into law, by gubernatorial action or inaction or veto override. 
  • Vetoed: The bill has been vetoed. 
  • Dead: The bill has been defeated in committee or on the floor. 

The pie charts below show the legislative status of bills in Democratic and Republican trifectas, respectively. 

Concentration of activity

The map below shows the concentration of legislative activity across the nation. A darker shade of orange indicates a higher number of relevant bills that have been introduced. A lighter shade of orange indicates a lower number of relevant bills. 

Partisan affiliation of sponsor(s)

The pie chart below shows the partisan affiliation of bill sponsors.

Bills by topic

The chart below shows the topics of a sample of the 1,466 bills we have tracked this year. The number listed on the blue portion of each bar indicates the number of Democratic-sponsored bills dealing with the subject in question. The number listed on the red portion of the bar indicates the number of Republican-sponsored bills. The purple and gray portions of the bar indicate the number of bipartisan-sponsored bills and bills with unspecified sponsorship, respectively. Note that the sums of the numbers listed do not equal the total number of bills because some bills deal with multiple topics.



Weekly Brew: February 17, 2023

By Ballotpedia staff
In Newsletters
February 17, 2023 at 4:00 PM

Each week, we bring you a collection of the most viewed stories from The Daily Brew, condensed. Here are the top stories from the week of February 13-February 17.

Third-party and independent candidates received the lowest share of the national U.S. House vote in two decades

Independent and third-party candidates received 2% of the national vote share in U.S. House elections last year, down from 2.5% in 2020, and their lowest share of the U.S. House vote since 2000.

After declining to 4.2% in 2004, independent and third-party candidates’ share of all votes for U.S. House remained relatively stable for the next 12 years, ranging from 3.8% to 4.7%. After this period of relative stability, the independent and third-party vote share declined in 2018, falling to 2.8% from 4.4.% in 2016. It declined further to 2.5% in 2020, and to 2% in 2022.

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Fifty-six minor party candidates received more votes than the margins of victory between the winning candidates last year

In the more than 40,000 elections we covered last year, at least 56 minor party or independent candidates received more votes than the margins of victory between the winning candidates in their elections, potentially altering the outcome.

Those 56 candidates include:

  • Five in congressional elections;
  • 18 in statewide elections;
  • 26 in state legislative elections; and,
  • Seven in municipal elections

There were 77 such candidates in 2020.

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State government trifectas at the Super Bowl

Super Bowl LVII offered us a rare matchup between a team in a state with a Republican trifecta—the Kansas City Chiefs from Missouri—against a team from a state with a divided government—the Philadelphia Eagles in Pennsylvania.

Such a matchup had only happened four times since the first Super Bowl in 1967. Teams from states with divided governments won three of those contests, while Republican trifecta teams had only won one: Super Bowl II in 1968.

There are currently 14 teams in states with Democratic trifectas, 11 in states with Republican trifectas, and seven in states with divided governments.

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