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The State and Local Tap: Louisiana voters approve one constitutional amendment and defeat three

Our weekly summary of state & local news highlights Louisiana’s ballot measure results and a Texas state representative’s party switch from Democratic to Republican. Read all about it in this week’s edition of the State & Local Tap.

We won’t publish the Tap next week due to the Thanksgiving holiday. Our next edition will be on Dec. 4.

Louisiana voters approve one constitutional amendment and defeat three

On Nov. 13, Louisiana voters approved Amendment 2, which decreased the maximum allowable individual income tax rate from 6% to 4.75% for tax years beginning in 2022. Through House Bill 278, the legislature provided in statute that the tax bracket rates beginning in 2022 for an individual would be 1.75% on the first $12,500 of net income; 3.50% on the next net income up to $50,000; and 4.25% on income above $50,000.

Voters rejected Amendments 1, 3, and 4. Amendment 1 would have created the State and Local Streamlined Sales and Use Tax Commission tasked to provide streamlined electronic filing and remittance of all sales and use taxes. Amendment 3 would have allowed Louisiana levee districts created after 2006 to levy an annual property tax of up to five mills ($5 per $1,000 of assessed value) without voter approval if those districts approved the 2021 constitutional amendment. Amendment 4 would have increased the amount of funds (from 5% to 10%) that could be redirected to a purpose other than what was originally provided for by law or as stated in the constitution during a projected budget deficit.

With 100% of precincts reporting, the vote totals were as follows:

Louisiana Amendment 1, Creation of the State and Local Streamlined Sales and Use Tax Commission Measure (2021)

  • Yes: 199,291 (48%)
  • No: 214,432 (52%)

Louisiana Amendment 2, Reduction of the Maximum Individual Income Tax Rate Measure (2021)

  • Yes: 223,269 (54%)
  • No: 189,973 (46%)

Louisiana Amendment 3, Authorize Certain Levee Districts to Collect a Five-Mill Annual Property Tax Measure (2021)

  • Yes: 172,545 (42%)
  • No: 237,605 (58%)

Louisiana Amendment 4, Increase Limit on Funding Reductions and Redirections During Budget Deficits Measure (2021)

  • Yes: 112,930 (28%)
  • No: 294,375 (72%)

The Louisiana Constitution limits legislation and constitutional amendments in odd-numbered years to matters concerning the state’s budget, government finance, and taxation.

A total of 52 constitutional amendments appeared on the statewide ballot in Louisiana during odd-numbered years from 1999 through 2019. Of the 52 amendments, 36 (69.23%) were approved and 16 (30.77%) were defeated.

Texas state Rep. Ryan Guillen switches to Republican Party

On Nov. 15, Texas state Rep. Ryan Guillen (R) announced that he was leaving the Democratic party. “After much thought and much prayer with my family, today I am announcing that I’ll proudly be running as a Republican to represent house district 31,” Guillen said in a press conference held with Texas Gov. Greg Abbott (R) and House Speaker Dade Phelan (R).

Guillen most recently won re-election in 2020, defeating Marian Knowlton (R) 58.4% to 41.6%.

He first assumed office in 2003, when he ran in the general election unopposed. 

As of November 2021, Ballotpedia has counted 146 state legislators who have switched parties since 1994. Ballotpedia has counted 39 state senators who have switched parties and 107 state representatives. Fifty-three state representatives have switched parties from Democrat to Republican, and 75 state lawmakers have switched parties in total. 

Party control of mayor’s office in Columbia, South Carolina, flips from Democratic to Republican in runoff

Daniel Rickenmann defeated Tameika Isaac Devine in the runoff election for mayor of Columbia, South Carolina, on Nov. 16. Rickenmann received 52% of the vote to Devine’s 48%. Both Rickenmann and Devine are members of the Columbia City Council.

While mayoral elections in Columbia are nonpartisan, Rickenmann is affiliated with the Republican Party. Incumbent Mayor Stephen K. Benjamin, a Democrat, did not run for re-election. Benjamin endorsed Devine, also a Democrat, in the runoff.

Fifteen state capitals held mayoral elections in 2021. Before these elections, 14 officeholders were Democrats and one was nonpartisan. As a result of the 2021 elections, 12 mayoral offices will remain under Democratic control (Atlanta, Georgia, will hold a runoff election between two Democrats on Nov. 30). The election in Columbia flips one office from Democratic to Republican control. One office continues to be held by a nonpartisan mayor, and one newly-elected mayor has not responded to inquiries.

Four states enact legislative maps; authority over redistricting in Washington passes to state supreme court

Colorado: The Colorado Supreme Court approved the state’s legislative maps on Nov. 15. The new district boundaries had been approved by the Colorado Independent Legislative Commission in October. The state supreme court previously approved the Colorado Independent Congressional Redistricting Commission’s congressional map on Nov. 1.

Colorado Politics’ Evan Wyloge observed that the new maps created nine House and eight Senate districts where previous election results fell within a five percentage point margin of victory. At the time of approval, Democrats held a 42-23 majority in the House and a 20-15 majority in the Senate.

This is the first redistricting cycle following the passage of Amendment Z by voters in 2018, which established a non-politician commission to handle state legislative redistricting. Under Colorado’s redistricting rules, once the commission approves its final versions, those maps are then sent to the state supreme court for approval. The plans redraw the state’s 35 Senate districts and 65 House districts and will take effect for the state’s 2022 state legislative elections. 

Nevada: Governor Steve Sisolak (D) signed the state’s new congressional and legislative maps into law on Nov. 16, which will take effect during the 2022 election cycle.

The Nevada Senate approved the redistricting plans by a 12-9 vote on Nov. 14 followed by the state Assembly voting 25-17 on Nov. 16. The maps were passed largely along party lines, with Democrats voting to approve and Republicans voting against.

After signing the maps, Sisolak said, “After a thoughtful, efficient and productive session, I am proud to sign these bills into law today. These maps reflect Nevada’s diversity and reflect public feedback gathered throughout the legislative process.” State Assm. Melissa Hardy (R) criticized the maps, saying, “A process that affects every person living in the state … deserves to be thoroughly vetted and questioned by this body as a whole. Instead, there are a lack of answers to questions posed, an inability to ask questions of those who have the answers, and an overall lack of transparency throughout.”

Utah: Governor Spencer Cox (R) signed new state legislative districts for both chambers into law on Nov. 16. The state legislature had approved the House and Senate district maps on Nov. 10.

Both proposals differed from those presented to the legislature by Utah’s Independent Redistricting Commission on Nov. 1. The commission presented 12 maps (three each for House, Senate, congressional, and school board districts) to the Legislative Redistricting Committee. Utah previously enacted its new congressional district map on Nov. 12.

Senator Scott Sandall (R), who along with Rep. Paul Ray (R) co-chaired the Legislative Redistricting Committee, said the new maps were drawn with citizens’ interests in mind. “After listening to Utahns and touring the state, Rep. Ray and I created maps that we believe incorporate the interests of all Utahns,” Sandall said. Summit County Democratic Party Chair Katy Owens said, “We would love to be able to have the opportunity to elect the representatives that we want but these maps have been deliberately drawn to prevent that.”

Connecticut: On Nov. 18, the Connecticut Reapportionment Commission voted 8-0 in favor of new maps for the state’s 151 House districts. The commission, made up of four Democratic and four Republican lawmakers, took over the redistricting process after the previous Reapportionment Committee failed to meet its Sept. 15 deadline. Census data was not delivered to the state until Sept. 16. Unlike the committee, the commission’s maps do not need to win two-thirds approval from both chambers of the Connecticut General Assembly, meaning the commission enacts its maps outright. Senate district maps have not yet been released.

Initial analyses indicated that no incumbent legislators seeking re-election were drawn out of their current districts. Commissioner and House Minority Leader Vincent Candelora (R) said, “I think overall, we made a lot of difficult decisions trying to keep a lot of the core districts in tact, but recognizing the fact that with population changes so do come changes to various districts.”

The Connecticut House is the second-largest legislative chamber to have completed its redistricting process following the 2020 census, behind only Massachusetts’ 160-seat House.

Nationwide, 21 states have adopted legislative district maps for at least one chamber, and legislative redistricting has been completed for 687 of 1,972 state Senate seats (34.8%) and 1,931 of 5,411 state House seats (35.7%).

Washington: On Nov. 16, the Washington Redistricting Commission announced that it did not produce new congressional and legislative redistricting plans by its Nov. 15 deadline. According to state law, the authority to draw new maps now rests with the Washington Supreme Court, which has until April 30, 2022, to produce new maps. Although past the deadline, the commission ultimately agreed upon map plans on Nov. 16 and submitted them to the state supreme court for consideration.

In Washington, congressional and state legislative district boundaries are drawn by a five-member non-politician commission that was established by a constitutional amendment in 1983. The majority and minority leaders of the state Senate and House each appoint one registered voter to the commission. These four commissioners then appoint a fifth, non-voting member to serve as chair.

After the 2010 census, the commission agreed upon new congressional and legislative district plans on Jan. 1, 2012, which was the deadline for them to approve maps before authority over redistricting would have passed to the state supreme court. 

Fifteen states move to authorize booster shots for all adults ahead of federal guidance 

Since Nov. 9, 15 states have moved to make COVID-19 booster shots available to adults age 18 and older, preempting official authorization from the federal government. On Nov. 19, the Food and Drug Administration authorized booster shots of Moderna’s and Pfizer’s COVID-19 vaccines. As of Nov. 19, Centers for Disease Control and Prevention Director Rochelle Walensky had not yet signed off on booster shots, though a decision was expected over the weekend. California was the first state to open up booster shots to all adult residents, followed by Colorado, New Mexico, and Arkansas.

Generally, governors or health officials in states allowing all adults to get a COVID-19 booster have said that booster shots are reserved for those who got their last Moderna or Pfizer shot more than six months ago or their last Johnson & Johnson shot more than two months ago. 

The federal government authorized Pfizer booster shots on Sept. 22 and Moderna and Johnson & Johnson booster shots on Oct. 21. In both cases, however, boosters were reserved for adults 65 and older and those with underlying health conditions or jobs that would make them more vulnerable to catching the virus. 

The states that expanded booster shot eligibility without federal approval are California, Colorado, New Mexico, Arkansas, West Virginia, Minnesota, Rhode Island, Kansas, Kentucky, Louisiana, Maine, Michigan, Vermont, Massachusetts, and Utah. 

Ballot Measures Update

Nov. 13 review

Voters in Louisiana approved one constitutional amendment and defeated three on Nov. 13.

2021 review

As of Nov. 13, voters in nine states decided 39 statewide ballot measures on four different election dates. Twenty-six were approved and 13 were defeated. Four of the measures were citizen initiatives, three were advisory questions about taxes in Washington, eight were bond issues, one was a legislatively referred statute, and the remaining 23 were legislatively referred constitutional amendments.

2022 ballot measures

Sixty-two statewide measures have been certified for the 2022 ballot in 30 states so far. No new measures were certified for the ballot last week.

Local Ballot Measures: The Week in Review

In 2021, Ballotpedia is providing comprehensive coverage of elections in America’s 100 largest cities by population and all state capitals. This encompasses every office on the ballot in these cities, including their municipal elections, trial court elections, school board elections, and local ballot measures. Ballotpedia also covers all local recall elections, as well as all local ballot measures in California and a selection of notable local ballot measures about elections and police-related policies. Recent and upcoming local ballot measure elections are listed below:

  • Nov. 13 – Louisiana: Voters in Baton Rouge approved a property tax measure to fund public transportation.
  • Nov. 9 – Arkansas: Voters in Little Rock approved a property tax increase for libraries.
  • Nov. 2 – Ballotpedia covered 156 local ballot measures on the Nov. 2 ballot in 18 states. At least 102 were approved, at least 43 were defeated, and the remaining 11 were too close to call as of Nov. 18.

Special Elections

Sixty-six state legislative special elections have been scheduled in 21 states so far this year. Sixty-one specials have taken place already. Heading into those races, Democrats had previously controlled 31 of the seats and Republicans previously controlled 30. Three seats flipped from Democratic control to Republican control, and two seats flipped from Republican control to Democratic control.

  • In special elections between 2011 and 2020, one party (either Republicans or Democrats) saw an average net gain of four seats nationally each year.
  • An average of 57 seats were filled through special elections in each of the past six even years (2010: 30, 2012: 46, 2014: 40, 2016: 65, 2018: 99, 2020: 59).
  • An average of 88 seats were filled through special elections in each of the past five odd years (2011: 94, 2013: 84, 2015: 89, 2017: 98, 2019: 77).

Upcoming special elections include:

Nov. 23

Nov. 30

Dec. 7

Dec. 14

States in session

Seven state legislatures—Massachusetts, Michigan, New Jersey, North Carolina, Ohio, Pennsylvania, and Wisconsin—are in regular session.



The Federal Tap: Biden signs Infrastructure Investment and Jobs Act into law

Our weekly summary of federal news highlights the Infrastructure Investment and Jobs Act becoming law and a judicial ruling against the American Rescue Plan Act’s tax provision. Read all about it in this week’s edition of the Federal Tap.

We won’t publish the Tap next week due to the Thanksgiving holiday. Our next edition will be on Dec. 4.

Biden signs Infrastructure Investment and Jobs Act into law

President Joe Biden (D) signed the Infrastructure Investment and Jobs Act into law on Nov. 15. The law allocates $1.2 trillion in new and regular annual infrastructure spending. It includes provisions to invest $89.9 billion in new infrastructure funding and reauthorizations, $66 billion in funding for Amtrak maintenance and development, and $65 billion to create universal access to reliable high-speed internet.

The bill was approved by the Senate on Aug. 10 in a 69-30 vote. All 48 Democrats and the two independents who caucus with Democrats voted in favor of the bill, along with 19 Republicans. Thirty Republicans voted against the bill and one abstained.

The House voted 228-206 to pass the bill on Nov. 5. The yeas consisted of 215 Democrats, who were joined by 13 Republicans, while the nays were made up of 200 Republicans and six Democrats.

Prior to the House passage of the bill, Democratic leaders in the chamber had been waiting on holding a vote until a vote could also be held on the final legislative language of the Build Back Better Act. On Nov. 6, the House voted to approve consideration of the Build Back Better Act.

U.S. district judge rules against American Rescue Plan Act tax provision

On Nov. 15, U.S. District Judge Scott Coogler, who was nominated to the court by George W. Bush (R) in 2003, blocked the enforcement of a provision in the American Rescue Plan Act (ARPA) that prevented states from using relief funds to offset tax reductions or credits. 

The lawsuit was brought by 13 states, led by West Virginia and Alabama. The other plaintiff states were: Arkansas, Alaska, Florida, Iowa, Kansas, Montana, New Hampshire, Oklahoma, South Carolina, South Dakota, and Utah. In their suit, they argued the provision in question violated the Constitution’s spending clause and the 10th Amendment.

In his ruling, Coogler said, “The language of the Tax Mandate makes it impossible for States to ‘make an informed choice’ about the costs of receiving ARPA funds because it is impossible to know how to exercise taxing authority without putting ARPA funds at risk.” He went on to say that, “any ARPA funds the Plaintiff States receive could be viewed as indirectly offsetting any reduction in net tax revenue from a change in state law or policy.”

Coogler’s ruling prevents the U.S. Treasury Department from enforcing the ARPA provision in any of the states that were plaintiffs in the suit. As of Nov. 18, the Department of Justice had not said whether it would seek to appeal the ruling.

Members of Congress not seeking re-election in 2022

Thirty-two members of Congress—six members of the U.S. Senate and 26 members of the U.S. House—have announced they will not seek re-election. Twenty members—six senators and 14 representatives—have announced their retirement. Five retiring Senate members are Republicans and one is a Democrat, and of the retiring House members, 10 are Democrats and four are Republicans.

Biden issues no pardons or commutations through Sept. 30

From his inauguration through Sept. 30, President Joe Biden (D) issued no pardons or commutations. Since 1902, the other presidents not to issue a pardon or commutation in that same window of time were Barack Obama (D), George W. Bush (R), Bill Clinton (D), and Richard Nixon (R). Obama, Bush, and Clinton did not issue a pardon or commutation until their third year in office. As of November 2021, presidents have issued an average of 120.4 pardons and 55.8 commutations annually.

The U.S. Department of Justice maintains a record of statistics about pardons and commutations. These figures are broken down by fiscal years, which run from Oct. 1 to Sept. 30. When presidential transitions occur (such as between Donald Trump and Biden), both presidents can issue pardons and commutations in the same fiscal year.

The U.S. Constitution, in Article II, Section 2, grants the president the power of executive clemency. Executive clemency includes the power to pardon, in which the president overturns a federal conviction and restores “an individual to the state of innocence that existed before the conviction.” Executive clemency also includes the power of commutation, which allows a president to shorten or reduce a federal prison sentence.

Nevada is 14th state to enact new congressional maps; authority over redistricting in Washington passes to state supreme court

Nevada: Governor Steve Sisolak (D) signed the state’s new congressional and legislative maps into law on Nov. 16, which will take effect during the 2022 election cycle.

The Nevada Senate approved the redistricting plans by a 12-9 vote on Nov. 14 followed by the state Assembly voting 25-17 on Nov. 16. The maps were passed largely along party lines, with Democrats voting to approve and Republicans voting against.

After signing the maps, Sisolak said, “After a thoughtful, efficient and productive session, I am proud to sign these bills into law today. These maps reflect Nevada’s diversity and reflect public feedback gathered throughout the legislative process.” State Assm. Jill Dickman (R) said, “This bill is universally disliked, but the reason has nothing to do with compromise because there was none.” 

Nevada is the 14th state to enact congressional maps after the 2020 census. During the 2010 redistricting cycle, Nevada enacted its congressional map on Oct. 27, 2011, 20 days earlier than this year. Congressional redistricting is now complete for 111 of the 435 seats (25.5%) in the U.S. House of Representatives.

Washington: On Nov. 16, the Washington Redistricting Commission announced that it did not produce new congressional and legislative redistricting plans by its Nov. 15 deadline. According to state law, the authority to draw new maps now rests with the Washington Supreme Court, which has until April 30, 2022, to produce new maps. Although past the deadline, the commission ultimately agreed upon map plans on Nov. 16 and submitted them to the state supreme court for consideration.

In Washington, congressional and state legislative district boundaries are drawn by a five-member non-politician commission that was established by a constitutional amendment in 1983. The majority and minority leaders of the state Senate and House each appoint one registered voter to the commission. These four commissioners then appoint a fifth, non-voting member to serve as chair.

After the 2010 census, the commission agreed upon new congressional and legislative district plans on Jan. 1, 2012, which was the deadline for them to approve maps before authority over redistricting would have passed to the state supreme court.

Upcoming Article III judicial vacancies

According to the latest vacancy data from the U.S. Courts, there were 35 total announced upcoming vacancies for Article III judgeships. The earliest vacancy announcement was on Jan. 21, 2021, when U.S. District Court for the Southern District of Texas Judge Vanessa Gilmore announced that she would retire on Jan. 2, 2022. The most recent announcement was on Nov. 4, when U.S. Court of Appeals for the 2nd Circuit Judge Susan Carney announced that she would assume senior status upon the confirmation of her successor. As of Nov. 19, 18 vacancy effective dates were unknown because the judge had not announced the date they would leave the bench. The next upcoming vacancy is scheduled to occur on Nov. 23, when U.S. District Court for the Eastern District of Virginia Judge Raymond Alvin Jackson assumes senior status.

For historical comparison, the week of Nov. 15-21, 2020, there were 61 federal judicial vacancies and three upcoming vacancies in the federal judiciary reported by the U.S. Courts.

Congress is out of session

Both the House and Senate are out of session next week. Click here to see the full calendar for the first session of the 117th Congress.

SCOTUS is out of session

The Supreme Court will not hear oral arguments next week. To learn about the 2021-2022 term, click here.

Where was the president last week?

On Monday, Biden remained in Washington, D.C. 

On Tuesday, Biden delivered remarks on the infrastructure law in Woodstock, New Hampshire. 

On Wednesday, Biden delivered remarks on the infrastructure law at General Motors’ Factory ZERO, Detroit-Hamtramck Assembly Center in Detroit, Michigan.  

On Thursday, Biden remained in Washington, D.C. 

On Friday, Biden departed Washington, D.C., for Wilmington, Delaware. 

Federal Judiciary

  • 77 federal judicial vacancies
  • 26 pending nominations
  • 35 future federal judicial vacancies


Checks and Balances:

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 three administrative law cases before the U.S. Supreme Court that could affect the scope of agency powers; the U.S. Department of Health and Human Services’ (HHS) move to roll back Trump-era rulemakings on guidance and regulatory review; and new federal legislation that seeks to relocate all federal agencies outside of Washington, D.C. 

At the state level, we take a look at state efforts to challenge the Biden administration’s vaccine requirements for certain private businesses, federal contractors, and healthcare workers; the North Carolina governor’s veto of a bill that would have limited his emergency powers; and state lawsuits challenging a provision of the American Rescue Plan and Recovery Act (ARPA) that states argue unconstitutionally seizes state taxing authority.

We also highlight a recent decision from the United States Court of Appeals for the Fifth Circuit that applies the five-part test for Auer deference established in Kisor v. Wilkie. As always, we wrap up with our Regulatory Tally, which features information about the 165 proposed rules and 244 final rules added to the Federal Register in October and OIRA’s regulatory review activity.

In Washington

SCOTUS cases challenge breadth of agency powers

What’s the story? 

Rulings in three cases on the U.S. Supreme Court’s docket for the October 2021 term could have broad effects on the scope of agency powers. The cases challenge applications of judicial deference, agency authority to interpret statutes, and the delegation of congressional authority to administrative agencies.

The first case, American Hospital Association v. Becerra, could limit future applications of Chevron deference—a doctrine that compels courts to defer to reasonable agency interpretations of unclear statutes. The case questions whether courts should defer to the U.S. Department of Health and Human Services’ (HHS) formulation of Medicare drug reimbursement rates in the absence of adequate supporting data. The court heard oral argument in the case on November 3.

Another case concerning HHS’ Medicare formulations, Becerra v. Empire Health Foundation, questions whether HHS had the authority to change its interpretation of the hospital reimbursement formula when a federal court had already ruled that the statute was clear regarding how the agency should calculate those payments. Oral argument in the case is scheduled for November 29.

The final case, West Virginia v. Environmental Protection Agency, consolidated challenges from states and coal companies questioning whether the Clean Air Act gives the EPA the authority to regulate greenhouse gases. The case could clarify the scope of Congress’ authority to delegate regulatory authority to administrative agencies. Oral argument in the case was scheduled for November 16.

Want to go deeper?

HHS rolls back Trump-era rulemakings on guidance and regulatory review

What’s the story? 

The U.S. Department of Health and Human Services (HHS) last month moved to rescind two Trump-era regulations aimed at reviewing agency regulations and curbing agency enforcement of non-binding guidance.

HHS on October 19 announced its intent to rescind rules issued under the Trump administration that implemented President Trump’s (R) Executive Order 13891, which aimed to prohibit federal administrative agencies from issuing binding guidance documents. Trump administration officials argued that the rule would prevent agencies from abusing guidance documents, which do not carry the force of law, to circumvent the rulemaking process. The Biden administration argued that the rule would make it harder for HHS to run the agency’s healthcare programs effectively.

The following week, HHS issued a proposed rule aiming to withdraw a Trump administration regulation requiring the agency to implement a retrospective review process for all agency rules. The review process, sometimes referred to as a sunset review, would have set a 10-year expiration date for each agency rule, with certain exceptions, unless the agency conducts a retrospective review to keep the rule in effect. The Trump administration argued that the review process would ensure that HHS regulations were up-to-date and effective.

Want to go deeper?

Drain the Swamp Act proposes relocating all federal agencies

What’s the story? 

U.S. Representative Warren Davidson (R-Ohio) on October 26 introduced the Drain the Swamp Act—legislation that proposes relocating all federal agency headquarters outside of Washington, D.C., by September 2026 in order to incorporate more regional perspectives into the federal workforce.

“The Drain the Swamp Act aims to diversify the federal workforce and ensure that a broader cross section of America’s population participates in federal policymaking,” Davidson said. “It would also reduce the burden on D.C. infrastructure and help development in underutilized properties across the country.”

Trump administration officials moved the headquarters of two sub-agencies of the Agriculture Department to Kansas City, Missouri, and the Bureau of Land Management to Colorado. The Biden administration later returned the BLM headquarters to Washington, D.C., while retaining a Colorado presence. 

Opponents of agency relocation proposals have argued that the moves seek to encourage the retirements or resignations of career agency staff. Supporters of the proposals contend that agency relocations would benefit agency staff by reducing their cost of living and support regional economies by investing in communities outside of the beltway.

Want to go deeper?

In the states

States push back against federal vaccine mandates

What’s the story? 

States have filed a wave of lawsuits against President Joe Biden’s (D) vaccine mandates on private businesses, federal contractors, and healthcare workers. 

27 Republican-led states as of November 11 had taken legal action to challenge the vaccine mandates for private businesses with 100 or more employees, arguing in part that the mandate exceeds the executive branch’s authority and violates the Tenth Amendment. The United States Court of Appeals for the Fifth Circuit on November 6 issued a stay to temporarily block the mandate, citing what it described as “grave statutory and constitutional issues.”

Nineteen states as of November 11 had filed lawsuits challenging the vaccine mandate for federal contractors, arguing that the mandate constitutes an overreach of federal power, violates federal procurement law, and failed to follow notice-and-comment rulemaking procedures, among other claims.

A 10-state coalition on November 10 filed a lawsuit in the United States District Court for the Eastern District of Missouri challenging Biden’s vaccine mandate for healthcare workers in facilities that receive federal funding. The states claim in part that the federal mandate unlawfully seeks to coopt state police powers.

Want to go deeper?

North Carolina governor vetoes bill limiting executive emergency powers

What’s the story? 

In the last edition of Checks and Balances, we reviewed North Carolina Governor Roy Cooper’s (D) veto of legislation that would have transferred executive powers over certain agency lawsuit settlements to the state legislature. Cooper exercised his veto authority again this month in another power struggle with the state legislature over the extent of the governor’s emergency powers.

Cooper on November 1 vetoed the Emergency Powers Accountability Act, which had passed the state legislature with majority Republican support. The bill would have required the governor to gain approval from the Council of State—a constitutional body of 10 state elected officials—before issuing emergency declarations lasting longer than seven days. Emergency declarations over 45 days would have required state legislative approval.

“Critical decisions about stopping deadly diseases, or responding to any other emergency, should stay with experts in public health and safety, not a committee of partisan politicians,” said Cooper in his veto statement.

State Representative Keith Kidwell (R), the bill’s sponsor, argued that Cooper’s veto “further shows the dangers of when power is centralized in the hands of one person.”

Want to go deeper?

States accuse feds of unconstitutional taxing power grab 

What’s the story? 

A case before the U.S. District Court for the Northern District of Texas questions whether a provision of the American Rescue Plan and Recovery Act of 2021 (APRA) that prohibits states from redirecting ARPA funds to reduce state taxes violates federalism principles and infringes on state sovereignty. In State of Texas, State of Louisiana, and State of Mississippi v. Yellen, et al., the plaintiff states claim that the ARPA provision, known as the Tax Cut Ban, unconstitutionally seizes state taxing authority.

The Tax Cut Ban prevents states from applying ARPA funds to “either directly or indirectly offset a reduction in the net tax revenue.” In addition to raising concerns about state sovereignty, the plaintiffs further argue that the language of the Tax Cut Ban is ambiguous and that any resulting regulations issued by the U.S. Department of the Treasury lack clear statutory parameters in violation of the nondelegation doctrine.

Two other court rulings have enjoined enforcement of the Tax Cut Ban in Ohio, Tennessee, and Kentucky. U.S. District Court Judge Gregory Van Tatenhove in June found in Commonwealth of Kentucky, et al. v. Yellen et al., that ARPA’s Tax Cut Ban provision constituted an unconstitutionally “coercive grant of federal money.” U.S. District Court Judge Douglas Cole in July held in ​​State of Ohio v. United States Department of the Treasury, et al. that the statutory language of the Tax Cut Ban was too ambiguous for Spending Clause legislation and that subsequent regulations could not remedy the ambiguity. 

Want to go deeper?

____________________________________________________________________________

Kisor’s five-part test, applied

The United States Court of Appeals for the Fifth Circuit in Johnson v. BOKF National Association recently applied the five-part test for granting Auer deference established by the U.S. Supreme Court in the 2019 case Kisor v. Wilkie. The court’s September opinion provided the following reasoning according to the five-part framework:

Step 1: Are the regulations in question ambiguous?

“[W]e conclude that the regulations at issue here, §§ 7.4001(a) & 7.4002—which define ‘interest’ and non-interest charges under the NBA, respectively—are genuinely ambiguous.”

Step 2: Is the agency’s regulatory interpretation reasonable?

“We conclude that OCC’s determination … is reasonable, and indeed, Johnson does not argue otherwise. After all, OCC’s position is consonant with the majority view on the subject based on the public comment submissions.”

Step 3: Is the agency interpretation of a regulation is an authoritative or official position of the agency?

“Interpretive Letter 1082 appears to be an authoritative statement rather than a ‘m[e]re ad hoc statement not reflecting the agency’s views.’”

Step 4: Does the question fall within the agency’s expertise?

“OCC’s interpretation of §§ 7.4001(a) and 7.4002 also falls squarely within the agency’s substantive expertise. As noted above, OCC is administering the NBA and regulations promulgated thereunder.”

Step 5: Is the agency’s interpretation a fair and considered judgment?

“Interpretive Letter 1082 reflects OCC’s ‘fair and considered judgment.’ Kisor, 139 S. Ct. at 2417. There is no indication that the interpretive letter was merely a ‘convenient litigating position’ or ‘post hoc rationalization advanced to defend past agency action against attack.’”

The court ultimately concluded that Auer deference was warranted in the case because the challenged agency interpretation represented a “reasonable interpretation of genuinely ambiguous regulations that it is charged with administering.”

Want to go deeper

Regulatory tally

Federal Register

Office of Information and Regulatory Affairs (OIRA)

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

  • Review of 42 significant regulatory actions. 
  • Two rules approved without changes; recommended changes to 40 proposed rules; no rules withdrawn from the review process.
  • As of November 1, 2021, OIRA’s website listed 81 regulatory actions under review.
  • Want to go deeper? 


Democrats walk out of Pennsylvania House committee hearing on public-sector union laws

Note: In observance of the Thanksgiving holiday, we will not be publishing Union Station on Nov. 26. Our next issue will be released on Dec. 3.

Democrats walk out of Pennsylvania House committee hearing on public-sector union laws

On Nov. 15, Democratic committee members walked out of a Pennsylvania House of Representatives Labor and Industry Committee hearing on six bills related to public-sector union laws. 

About the hearing

The committee’s minority party chairman, Rep. Gerald Mullery (D), read a statement before Democratic members left the hearing. Mullery said Democratic committee members were dissatisfied with the bills, which they did not think addressed real issues faced by workers, and that Republicans were not working in a bipartisan manner. 

According to the Pennsylvania Capital-Star, “[Committee Chairman Jim Cox (R)] said at the start of the hearing that he had invited representatives from the Pennsylvania State Education Association, the state’s largest teachers union, as well as from the state chapter of the American Federation of State, County and Municipal Employees. However, neither agreed to appear.” Cox said, “The hearing is going to appear lopsided, it was not from a lack of effort on our side.”

The Labor and Industry Committee has 14 Republican members and nine Democratic members. Committee members who remained in the hearing heard testimony about the following bills:

  • HB 844: This bill would ban public employee social security numbers and personal contact information as subjects of collective bargaining. Rep. David Rowe (R) introduced the bill on March 9, 2021.
  • HB 845: This bill would require any proposed public employee collective bargaining agreement to be published on the public employer’s website at least 14 days before the agreement is accepted. It would also make documents from the collective bargaining process into public records subject to the state’s right-to-know law. Rowe also introduced this bill on March 9.
  • HB 2036: This bill would prohibit collective bargaining agreements from putting conditions on when public employees may join or leave a union and would prohibit maintenance of membership clauses. The bill would not apply to collective bargaining agreements for corrections officers. Rep. Greg Rothman (R) introduced the bill on Oct. 29, 2021.
  • HB 2037: This bill would require recertification elections every six years for collective bargaining units. Rep. Dawn Keefer (R) introduced the bill on Oct. 29, 2021.
  • HB 2042:  This bill would require public employers to provide non-union members with an annual notification that they are not required to make payments to a union and to provide new and returning employees with a notification that they do not have to join a union. Rep. Kate Klunk (R) introduced the bill on Nov. 3, 2021.
  • HB 2048: This bill would prohibit collective bargaining agreements from authorizing the deduction of political contributions from public employee wages. It would not apply to police or firefighters. Rep. Ryan Mackenzie (R) introduced the bill on Nov. 4, 2021.

The sections below include excerpts from witness testimonies. To view each of the 23 witnesses’ prepared statements in full, click here.  

Supporting testimony

David Osborne, CEO of Americans for Fair Treatment, said: “The bills we are discussing today represent common sense solutions to the most practical problems facing public employees who want to exercise their workplace rights. I think we can all agree that public sector employees deserve to understand their rights, that no one should be forced to be a union member just to get a government job, and that everyone should have a choice when it comes to which union represents them.”

Danielle R. Acker Susanj, vice president and senior litigation counsel of The Fairness Center, said: “There are Pennsylvania public employees, including some of our clients, working today under contracts with facially unconstitutional provisions. For instance,we represented a public school teacher whose CBA with his school district says that employees must pay agency fees, or fair share fees—even though the Janus decision specifically says that such fees are unconstitutional. Incredibly, that CBA was agreed to and signed after the Janus decision, which means the union and public employer included this language even though they knew it was illegal under Janus. While representing that client, we discovered that at least 20 CBAs signed after Janus by local school districts and local PSEA-affiliates also say that employees must pay these illegal fees.” 

Opposing testimony

A letter from leaders of six Pennsylvania public sector unions in the CLEAR Coalition said: “The agenda of today’s public hearing is nothing more than an ideologically driven attack, funded by out-of-state billionaires and extremist organizations that seek to diminish unions and their role in the workplace. Make no mistake, the ‘union reform’ bills are not about protecting workers’ rights and freedoms. Rather than use a standing committee of the General Assembly to address the very real concerns of Pennsylvanians, anti-worker politicians have chosen to use their power and public platform to push an agenda that would make it harder for public service workers to join together to have a voice in the workplace, a voice that ensures workers’ rights and freedoms, and leads to higher quality public services for all Pennsylvanians.” 

Jeffrey T. Sultanik, chair of the Education Law Group at Fox Rothschild LLP, said: “For the past 43 years, I have been practicing education law in the Commonwealth of Pennsylvania and have negotiated hundreds of teachers’ and support staff contracts. I have been involved in nearly every aspect of management and public sector labor union interactions … While I appreciate the efforts of the legislature to address public employee personal information, collective bargaining transparency, employee rights notification, the repeal of maintenance of membership, the requirements for union recertification and the PAC-Only paycheck protection legislation, I do not believe any of these forms of legislation will substantively improve the position of public employers in interacting with its labor unions and its employees. This is particularly true in a labor short economy that we are currently facing.” 

Pennsylvania has a divided government. Governor Tom Wolf is a Democrat, while the Republican Party controls both chambers of the state legislature. There are 113 Republicans and 89 Democrats in the Pennsylvania House of Representatives and 28 Republicans and 21 Democrats in the state Senate. Two-thirds of members in both chambers must vote to override a veto—meaning 136 of the 203 members in the House and 34 of the 50 members in the Senate.

What we’re reading

The big picture

Number of relevant bills by state

We are currently tracking 110 pieces of legislation dealing with public-sector employee union policy. On the map below, a darker shade of green indicates a greater number of relevant bills. Click here for a complete list of all the bills we’re tracking. 

Number of relevant bills by current legislative status

Number of relevant bills by partisan status of sponsor(s) 

Recent legislative actions

Below is a complete list of relevant legislative actions taken since our last issue. 

  • Wisconsin AB687: This bill would give certain school district, educational service, college district, and university system employees the right to bargain collectively over wages, hours, and employment conditions.
    • Democratic sponsorship. 
    • Introduced, read for the first time, and referred to the Assembly Labor and Integrated Employment Committee on Nov. 12. 



Documenting America’s Path to Recovery #213: November 18, 2021

Welcome to Documenting America’s Path to Recovery. Today we look at booster shots in ten states, changes in coronavirus restrictions in Washington, and other news since Nov. 10.

In observance of Thanksgiving, we will not be sending out an edition of this newsletter on Nov. 25. You can expect the next edition of this newsletter in your inbox on Dec. 2.

We’ll also give the latest tracking on:

  • Lawsuits about state actions and policies 
  • Vaccine distribution
  • State-level mask requirements
  • COVID-19 emergency health orders
  • School mask requirements
  • State proof-of-vaccination requirements and policies

Upcoming news

What is changing in the next week?

Federal: The Centers for Disease Control’s (CDC) vaccine advisory committee will meet on Nov. 19 to discuss authorization of the Pfizer booster vaccination for all individuals 18 and older.

Mississippi (Republican trifecta): On Nov. 11, Gov. Tate Reeves (R) announced the state’s coronavirus state of emergency would end on Nov. 20.

Since our last edition

What rules and restrictions are changing in each state? For a continually updated article, click here.

Federal:

  • On Nov. 15, Pfizer announced it had applied for Emergency Use Authorization from the Food and Drug Administration (FDA) for an antiviral medication to treat the coronavirus in unvaccinated individuals at high risk of severe disease.
  • On Nov. 15, U.S. District Judge L. Scott Coogler, who was nominated to the court by George W. Bush (R) in 2003, blocked the enforcement of a provision in the American Rescue Plan Act that prevented states from using relief funds to offset tax reductions. 

Arkansas (Republican trifecta): On Nov. 15, Gov. Asa Hutchinson (R) directed the Arkansas Department of Health to issue guidelines making all residents 18 and older eligible for a COVID-19 booster shot if six months have passed since they received a Pfizer or Moderna vaccine, or two months have passed since they received a Johnson & Johnson vaccine.

California (Democratic trifecta):

  • On Nov. 10, Gov. Gavin Newsom (D) extended the state’s coronavirus state of emergency through March 31, 2022.
  • On Nov. 9, California Public Health Department Director Tomás Aragón sent a letter to local health jurisdictions and providers saying residents 18 and older are eligible to receive a booster vaccination if six months have passed since they received a Pfizer or Moderna vaccine, or two months have passed since they received a Johnson & Johnson vaccine.

Colorado (Democratic trifecta): 

  • On Nov. 11, Gov. Jared Polis (D) issued an executive order making all residents 18 and older eligible for a COVID-19 booster shot if six months have passed since they received a Pfizer or Moderna vaccine, or two months have passed since they received a Johnson & Johnson vaccine.
  • On Nov. 14, the Colorado Department of Public Health and Environment said coronavirus vaccinations would be required to attend indoor, unseated events with more than 500 people in certain counties, effective Nov. 19 through Dec. 31. Negative coronavirus tests can be accepted instead of proof of vaccination through Dec. 1.

Delaware (Democratic trifecta): On Nov. 10, Gov. Jay Carney (D) extended the statewide school mask requirement through Feb. 8, 2022.

Georgia (Republican trifecta): On Nov. 16, Gov. Brian Kemp (R) and Attorney General Chris Carr (R) announced they were suing to overturn President Joe Biden’s (D) requirement that staff at medical facilities participating in Medicare and Medicaid get a COVID-19 vaccine. The requirement is scheduled to take effect Jan. 4, 2022. 

Illinois (Democratic trifecta): On Nov. 12, Gov. J.B. Pritzker (D) extended the statewide coronavirus disaster proclamation for an additional 30 days.

Kansas (divided government): On Nov. 17, Gov. Laura Kelly (D) announced that all residents 18 and older are eligible for a COVID-19 booster shot if six months have passed since they received a Pfizer or Moderna vaccine, or two months have passed since they received a Johnson & Johnson vaccine.

Kentucky (divided government): On Nov. 17, Gov. Andy Beshear (D) issued an executive order making all residents 18 and older eligible for a COVID-19 booster shot if six months have passed since they received a Pfizer or Moderna vaccine, or two months have passed since they received a Johnson & Johnson vaccine.

Louisiana (divided government): The Louisiana Department of Health issued guidance allowing any residents 18 and older to receive a booster vaccination if six months have passed since they received a Pfizer or Moderna vaccine, or two months have passed since they received a Johnson & Johnson vaccine.

Massachusetts (divided government): On Nov. 18, Gov. Charlie Baker (R) announced that all residents over 18 are eligible to get a COVID-19 booster shot. Baker said people who initially got the two-dose Pfizer or Moderna shots could get a booster if six months had passed since their last shot, while people who got the one-dose Johnson & Johnson vaccine could get a booster two months after their shot.  

Maine (Democratic trifecta): On Nov. 17, Gov. Janet Mills (D) announced that all residents 18 and older are eligible for a COVID-19 booster shot if six months have passed since they received a Pfizer or Moderna vaccine, or two months have passed since they received a Johnson & Johnson vaccine.

Michigan (divided government): On Nov. 17, Gov. Gretchen Whitmer (D) announced that all residents 18 and older are eligible to get a COVID-19 booster shot if six months have passed since their last shot. 

New Mexico (Democratic trifecta): On Nov. 12, Gov. Michelle Lujan Grisham issued an executive order making all residents 18 and older eligible for a COVID-19 booster shot if six months have passed since they received a Pfizer or Moderna vaccine, or two months have passed since they received a Johnson & Johnson vaccine.

North Dakota (Republican trifecta): On Nov. 12, Gov. Doug Burgum (R) signed House Bill 1511. The bill prohibits state and local governments from requiring COVID-19 vaccines. 

Pennsylvania (divided government): On Nov. 10, Pennsylvania Commonwealth Court Judge Christine Fizzano Cannon ruled that Acting Secretary of the Pennsylvania Health Department Alison Beam’s school mask requirement was issued without proper authority. Cannon issued an additional ruling on Nov. 16 saying the requirement would expire Dec. 4 barring a successful appeal to the state supreme court.

Rhode Island (Democratic trifecta): On Nov. 12, Gov. Daniel McKee (D) extended the state’s coronavirus disaster emergency declaration and the state’s school mask requirement through Dec. 11.

Texas (Republican trifecta): On Nov. 10, U.S. District Court for the Western District of Texas Judge Earl Yeakel blocked Gov. Greg Abbott’s (R) July 29 executive order prohibiting mask requirements in K-12 public schools. Yeakel’s ruling means that Attorney General Ken Paxton (R) cannot sue school districts in violation of Abbott’s order. 

Utah (Republican trifecta): On Nov. 16, Gov. Spencer Cox (R) signed SB2004, a bill requiring businesses that mandate a COVID-19 vaccine to grant medical or religious exemptions to employees who request them. 

Washington (Democratic trifecta): On Nov. 15, Gov. Jay Inslee’s (D) order placing restrictions on large events—those with more than 10,000 individuals outdoors or 1,000 individuals indoors—went into effect. The order requires patrons 12 years and older at large events to provide proof of vaccination or a recent negative COVID-19 test. 

West Virginia (Republican trifecta): On Nov. 15, Gov. Jim Justice (R) announced that all residents 18 and older are eligible to receive a COVID-19 booster shot if six months have passed since their last shot. 

Lawsuits about state actions and policies

To date, Ballotpedia has tracked 1,958 lawsuits in 50 states dealing in some way with the COVID-19 outbreak. Court orders have been issued, or settlements have been reached, in 608 of those lawsuits. 

Since Nov. 10, we have added 11 lawsuits to our database. We have also tracked one additional court order and/or settlement. 

BST Holdings, L.L.C. v. Occupational Safety and Health Administration

On Nov. 12, a three judge panel of the U.S. Court of Appeals for the Fifth Circuit  voted 3-0 to extend its temporary stay against the Occupational Safety and Health Administration’s (OSHA) COVID-19 vaccine mandate applying to employers with 100 or more workers. The panel comprised Judges Kurt Engelhardt (a Donald Trump (R) appointee), Kyle Duncan (a Trump appointee), and Edith Jones (a Ronald Reagan (R) appointee). Engelhardt wrote: “A stay is firmly in the public interest. From economic uncertainty to workplace strife, the mere specter of the Mandate has contributed to untold economic upheaval in recent months.” In a press release, OSHA said: “While OSHA remains confident in its authority to protect workers in emergencies, OSHA has suspended activities related to the implementation and enforcement of the [mandate] pending future developments in the litigation.” 

Vaccine distribution

As of Nov. 17, the states with the highest vaccination rates as a percentage of total population (including children) were:

The states with the lowest rates were:

State mask requirements

Since Nov. 10, no changes to statewide mask requirements occurred. As of Nov. 18, masks were required in nine states with Democratic governors. Fourteen states with Democratic governors and all 27 states with Republican governors had no state-level mask requirements in effect.

COVID-19 emergency health orders

Governors and state agencies in all 50 states issued orders declaring active emergencies in response to the coronavirus pandemic. These orders allowed officials to access resources, like stockpiles of medical goods and equipment, unavailable to them during non-emergencies and temporarily waive or suspend certain rules and regulations. 

COVID-19 emergency orders have expired in 25 states. Emergency orders remain active in 25 states.

Since Nov. 10, no states have ended their statewide COVID-19 emergencies. 

School mask requirements

Since Nov. 10, statewide school mask requirements were extended in Delaware and Rhode Island. Courts ruled to block Texas’ school mask requirement ban, and to set Dec. 4 as the expiration date for Pennsylvania’s school mask requirement.

State proof-of-vaccination requirements and policies

As COVID-19 vaccination rates have increased, state governments have enacted various rules around the use of proof-of-vaccination requirements in their states. In some cases, states have banned state or local governments from requiring that people show proof-of-vaccination. Other states have assisted in the creation of digital applications—sometimes known as vaccine passports—that allow people to prove their vaccination status and, in some cases, bypass COVID-19 restrictions.  

  • Twenty states have passed legislation or issued orders prohibiting proof-of-vaccination requirements at some or all levels of government. 
  • Five states have supported the creation of digital vaccination status applications. 

Since Nov. 10, one state—North Dakota—passed a bill banning state and local governments from requiring proof of vaccination. North Dakota previously passed a similar law in April 2021.

State employee and healthcare worker vaccine requirements

The Food and Drug Administration granted Emergency Use Authorization to several COVID-19 vaccines in late 2020 and early 2021. Since then, many states have required state employees and healthcare workers to get vaccinated. In some cases, states have allowed workers to opt for regular COVID-19 testing in lieu of getting a vaccine. 

  • Fifteen states have issued a COVID-19 vaccine requirement for healthcare workers. 
  • Twenty states have issued a COVID-19 vaccine requirement for state employees.

Since Nov. 10, no states have enacted policies related to state employee or healthcare worker vaccine requirements.



Fifth Circuit stays Biden administration coronavirus vaccine or testing requirement

Our weekly summary of federal news highlights the Fifth Circuit’s decision to stay the Biden administration’s vaccine or testing requirement and SCOTUS’ accepting three more cases for argument. Read all about it in this week’s edition of the Federal Tap.

Congress is in session

Both the House and Senate are in session next week. Click here to see the full calendar for the first session of the 117th Congress.

SCOTUS is out of session

The Supreme Court will not hear oral arguments next week. To learn about the 2021-2022 term, click here.

Where was the president last week?

On Monday, Biden returned to Washington, D.C., from Rehoboth Beach, Delaware. 

On Tuesday, Biden remained in Washington, D.C. 

On Wednesday, Biden met with President of the European Commission Ursula von der Leyen in Washington, D.C. He also attended former Governor Ruth Ann Minner’s funeral in Milford, Delaware, and delivered remarks on the infrastructure deal at the Dundalk-Marine Terminal at the Port of Baltimore, Maryland. 

On Thursday, Biden participated in the centennial anniversary of the Tomb of the Unknown Soldier in Arlington National Cemetery, Virginia.

On Friday, Biden departed Washington, D.C., for Camp David, Maryland. 

Opinion polling comparison during the Trump and Biden administrations

President Biden’s approval rating for the 41st week of his term was 43.8%, down 0.3 percentage points from the week before. President Trump’s approval rating at the same point in his term was 38.3%, down 0.4 percentage points from the week before.

Federal Judiciary

  • 77 federal judicial vacancies
  • 26 pending nominations
  • 33 future federal judicial vacancies

Upcoming Article III Judicial Vacancies

According to the latest vacancy data from the U.S. Courts, there were 33 total announced upcoming vacancies for Article III judgeships. The earliest vacancy announcement was on Jan. 21, 2021, when U.S. District Court for the Southern District of Texas Judge Vanessa Gilmore announced that she would retire on Jan. 2, 2022. The most recent announcement was on Nov. 4, when U.S. Court of Appeals for the 2nd Circuit Judge Susan Carney announced that she would assume senior status upon the confirmation of her successor. As of Nov. 12, sixteen vacancy effective dates are unknown because the judge has not announced the date they will leave the bench. The next upcoming vacancy is scheduled to occur on Nov. 23, when U.S. District Court for the Eastern District of Virginia Judge Raymond Alvin Jackson assumes senior status.

For historical comparison, the week of Nov. 8-14, 2020, there were 65 federal judicial vacancies and three upcoming vacancies in the federal judiciary reported by the U.S. Courts.

SCOTUS accepts three cases for argument during the 2021-2022 term

The Supreme Court of the United States (SCOTUS) on Nov. 5 accepted three additional cases for argument during its 2021-2022 term:

Ruan concerns the good faith defense available to defendants charged under the U.S. Controlled Substances Act. The question presented to the court in the case is: “[W]hether a physician alleged to have prescribed controlled substances outside the usual course of professional practice may be convicted under Section 841(a)(1) without regard to whether, in good faith, he ‘reasonably believed’ or ‘subjectively intended’ that his prescriptions fall within that course of professional practice.” Ruan originated from the U.S. Court of Appeals for the 11th Circuit, and Kahn came from the U.S. Court of Appeals for the 10th Circuit.

Marietta Memorial Hospital originated from the U.S. Court of Appeals for the 6th Circuit and concerns the Medicare Secondary Payer Act. The Act prohibits group health plans from considering a plan participant’s eligibility when the individual has end-stage renal disease, and from providing different benefits to these individuals compared to other covered participants. 

Egbert came from the U.S. Court of Appeals for the 9th Circuit and concerns the U.S. Supreme Court’s ruling in Bivens v. Six Unknown Federal Narcotics Agents (1971). In Bivens claims, private individuals may sue FBI agents for violating their Fourth, Fifth, and/or Eighth Amendment rights. 

The court had agreed to hear 48 cases during its 2021-2022 term as of Nov. 5. Three cases were dismissed, and one case was removed from the argument calendar. Fifteen cases had not yet been scheduled for argument. To date, the court has issued decisions in two cases, both of which were decided without argument.

Fifth Circuit stays Biden administration coronavirus vaccine or testing requirement for companies with more than 100 employees

On Nov. 6, the United States Court of Appeals for the Fifth Circuit stayed the implementation of the Biden administration’s coronavirus vaccine or testing requirement for companies with more than 100 employees, which was set to take effect on Jan. 4, 2022. The Occupational Safety and Health Administration (OSHA) issued the rule as an emergency regulation on Nov. 5, 2021.

On the same day the rule was released, five states, led by Texas, filed a lawsuit against OSHA and the U.S. Department of Labor. In the plaintiffs’ motion to stay, they argued the rule exceeded OSHA’s scope of authority and its enactment violated administrative law standards. Louisiana, Mississippi, South Carolina, and Utah are also plaintiffs in the suit.

This lawsuit is one of four multistate lawsuits filed against the OSHA emergency regulation. As of Nov. 11, there were at least five additional multistate lawsuits filed against the Biden administration’s vaccine requirement rules for federal contractors and healthcare workers.

Redistricting Roundup

Montana

On Nov. 12, the Montana Districting and Apportionment Commission enacted a new congressional map following the 2020 redistricting cycle. The commissioners voted 3-2 to approve the map and to transmit it to the Montana Secretary of State. Both Republican commissioners and Maylinn Smith, the nonpartisan tiebreaker, voted in favor of the map, and the two Democratic commissioners voted against the map.

A version of the congressional map enacted by the commission had previously been approved on Nov. 4. The map that received final approval on Nov. 12 made a minor change in Pondera County, allocating a smaller portion of it to the western district.

Following the 2020 census, population increases in Montana gave the state two congressional districts. Previously, the state was an at-large congressional district. The next deadline ahead of the commission will be preparing a legislative redistricting plan by the 10th day of the upcoming regular legislative session.

Ohio

On Nov. 10, the Ohio Joint Committee on Congressional Redistricting held the first of two required public hearings on congressional redistricting proposals. The deadline for enacting new maps is Nov. 30. For any map to be put in place for a full 10 years, support from at least a third of the members of the minority party is required, and any approved plan that does not meet this threshold will only be effective for four years. The joint committee consists of three state Senators and three state Representatives and has four Republicans and two Democrats.

The Ohio Redistricting Commission did not meet an Oct. 31 deadline to draw and approve a congressional district plan, meaning the authority to create such districts passed to the state legislature. Dan Tierney, a spokesperson for Gov. Mike DeWine (R), said the delayed release of U.S. Census Bureau data “essentially took five months out of the process,” and did not leave sufficient time for the commission to draft and debate new congressional districts. 

Virginia

On Nov. 12, the Virginia Supreme Court disqualified one of the Republican nominees for the position of Special Master as the court began its process for deciding the state’s congressional redistricting plan. According to the order, “the Court believes that [Thomas Bryan’s] work for the Senate Republican Caucus related to the very subject matter for which the Court is called upon to appoint Special Masters creates a conflict.” The court also expressed concerns about the other two Republican nominees and unanimously ordered party leaders to submit three or more additional nominees by Nov. 15. 
The state supreme court is now responsible for drawing new maps after the Virginia Redistricting Commission missed a Nov. 8 deadline to produce an approved congressional district plan. Under the constitutional amendment that established the state’s redistricting process, party leaders of the House of Delegates and Senate are each required to nominate three special masters to assist the court in the redistricting process. The court will then select one special master from each party’s list of nominees. The special masters will have 30 days to draft a proposal to submit to the court for review.



Texas Gov. Abbott appoints Evan Young as state supreme court justice

Our weekly summary of state & local news highlights Gov. Abbott’s state supreme court justice appointment and Louisiana’s upcoming primaries. Read all about it in this week’s edition of the State & Local Tap.

Ballot Measures Update

Nov. 13 preview

Voters in Louisiana will decide four statewide measures on Nov. 13.

Nov. 2 review

Voters in six states decided 24 statewide ballot measures on Nov. 2. Fourteen (14) measures were approved and 10 were defeated. Four of the measures were citizen initiatives, three were advisory questions about taxes in Washington, one was a bond issue for transportation, and the remaining 16 were legislatively referred constitutional amendments. Click here to see election results.

2022 ballot measures

Sixty-one (61) statewide measures have been certified for the 2022 ballot in 29 states so far.No new measures were certified for the ballot last week.

States in session

Seven state legislatures—Massachusetts, Michigan, New Jersey, North Carolina, Ohio, Pennsylvania, and Wisconsin—are in regular session.

Local Ballot Measures: The Week in Review

In 2021, Ballotpedia is providing comprehensive coverage of elections in America’s 100 largest cities by population and all state capitals. This encompasses every office on the ballot in these cities, including their municipal elections, trial court elections, school board elections, and local ballot measures. Ballotpedia also covers all local recall elections, as well as all local ballot measures in California and a selection of notable local ballot measures about elections and police-related policies. Recent and upcoming local ballot measure elections are listed below:

  • Nov. 13 – Louisiana: Voters in Baton Rouge will decide on a property tax measure to fund public transportation.
  • Nov. 9 – Arkansas: Voters in Little Rock approved a property tax increase for libraries.
  • Nov. 2 – Ballotpedia covered 156 local ballot measures on the Nov. 2 ballot in 18 states. At least 100 were approved, at least 42 were defeated, and the remaining 14 were too close to call as of Nov. 11.

Special Elections

Sixty-six (66) state legislative special elections have been scheduled in 21 states so far this year. Fifty-eight (58) specials have taken place already. Heading into those races, Democrats had previously controlled 29 of the seats, and Republicans previously controlled 29. Three seats flipped from Democratic control to Republican control, and two seats flipped from Republican control to Democratic control.

  • In special elections between 2011 and 2020, one party (either Republicans or Democrats) saw an average net gain of four seats nationally each year.
  • An average of 57 seats were filled through special elections in each of the past six even years (2010: 30, 2012: 46, 2014: 40, 2016: 65, 2018: 99, 2020: 59).
  • An average of 88 seats were filled through special elections in each of the past five odd years (2011: 94, 2013: 84, 2015: 89, 2017: 98, 2019: 77).

Upcoming special elections include:

Nov. 13

Nov. 23

Nov. 30

Dec. 7

Signatures submitted to Loudoun County Circuit Court to recall school board member Brenda Sheridan

Supporters of a recall against six of the nine members of the Loudoun County Public Schools school board in Virginia submitted signatures against Chairwoman Brenda Sheridan on Nov. 9. Supporters said they filed 1,859 signatures. A total of 803 signatures are required to move the recall forward.

The signatures were submitted to the Loudoun County Circuit Court, where the petition will be reviewed by a judge. If the case is accepted, a trial will be held. At the trial, recall supporters must “demonstrate the officer engaged in neglect of duty, misuse of office, or incompetence in the performance” in order to remove Sheridan from office.

Five other members were also included in the recall effort. One member passed away in August, and another resigned in November before a trial could take place. Petitions against the other three members have not been filed.

The recall effort is sponsored by the Fight For Schools political action committee (PAC). Recall supporters said they launched the effort due to school board members’ involvement in a private Facebook group, which they said was a violation of Virginia’s Freedom of Information Act as well as the school board’s Code of Conduct because the members discussed public matters in a private setting. Recall supporters also alleged that the district was using Critical Race Theory in its employee training and student curriculum, which they opposed.

Interim Superintendent Scott Ziegler said the district uses a Culturally Responsive Framework that “speaks to providing a welcoming, affirming environment and developing cultural competence through culturally responsive instruction, deeper learning, equitable classroom practices and social-emotional needs for a focus on the whole child.” He said the district did not use Critical Race Theory in its staff training or student curriculum. 

A group called Loudoun For All formed a political action committee to counteract the recall effort. “There is no reason equity in our schools should be this controversial,” Rasha Saad, president of Loudoun For All, said in a statement.

Ballotpedia has tracked 84 school board recall efforts against 215 board members so far in 2021—the highest number of school board recall efforts we have tracked in one year.

Texas Gov. Abbott appoints Evan Young as state supreme court justice

Texas Gov. Gregg Abbott (R) appointed Evan Young (R) to the Texas State Supreme court on Nov. 1. Young assumed office on Nov. 9. Young was appointed to succeed Eva Guzman (R), who resigned from the court in June 2021 to run for Texas attorney general. 

Before he was appointed to the state supreme court, Young was a partner at the law firm Baker Botts LLP and a professor at the University of Texas School of Law.

Under Texas law, the governor appoints a replacement to the Texas Supreme Court in the event of a midterm vacancy. The Texas State Senate must then confirm the nominee. Appointees serve until the next general election, in which they must participate in a partisan election to remain on the bench for the remainder of the unexpired term.

In 2021, there have been 18 supreme court vacancies in 16 of the 29 states where replacement justices are appointed instead of elected. Seventeen (17) of the vacancies have been caused by retirements, and one vacancy was caused by a justice’s death. To date, 14 of those vacancies have been filled.

South Dakotans Decide Healthcare submits signatures for Medicaid expansion initiative

South Dakotans Decide Healthcare submitted 47,000 signatures for their Medicaid expansion initiative on Nov. 8. To qualify for the ballot, 33,921 valid signatures are required.

The measure would amend the constitution to require the state to provide Medicaid benefits to adults between ages 18 and 65 whose incomes are below 133% of the federal poverty level. Because the Affordable Care Act includes a 5% income disregard, this measure would effectively expand Medicaid to cover those with incomes at or below 138% of the federal poverty level.

As of November 2021, a total of 38 states and Washington, D.C. had expanded or voted to expand Medicaid, while 13 states had not. Six states have expanded Medicaid through citizen initiatives.

Dakotans 4 Health also circulated a Medicaid expansion initiated amendment but did not submit signatures by the deadline. Dakotans 4 Health filed a Medicaid expansion initiative to amend state law (rather than the state constitution). Since the deadlines for initiated measures that amend state law was extended to May 3, 2022, Dakotans 4 Health said they would collect signatures for that measure and would support South Dakotans Decide Healthcare’s constitutional amendment.

Alaska, South Dakota, North Dakota enact new legislative maps

Three states enacted new legislative maps this week.

Alaska

The Alaska Redistricting Board adopted a new legislative map on Nov. 10 for the state’s 20 Senate and 40 House districts after the 2020 census. While the new map has been enacted, there will now be a 30-day period during which time interested parties may file legal challenges against the new map. The board’s three Republican-appointed members—John Binkley, Bethan Marcum, and Budd Simpson— voted in favor of the final map while the two nonpartisan members—Melanie Bahnke and Nicole Borromeo—voted against it.

KTOO’s Andrew Kitchenman reported that, since the new map largely altered the state’s Senate districts, 19 of the 20 districts will hold elections in 2022. Alaska normally staggers elections to its Senate, with half the chamber holding elections in one even-year cycle and the other half holding elections in the next, and all members would serve four-year terms. In 2022, certain districts will elect senators to two-year terms while others will elect them to four-year terms in order to restart the staggered process under the new district lines. Alaska’s House districts hold elections every two years.

North Dakota

North Dakota Gov. Doug Burgum (R) signed new state legislative maps into law on Nov. 11. The House approved the maps in a 73-18 vote on Nov. 9, and the Senate approved the maps in a 40-7 vote on Nov. 10. Since North Dakota was apportioned a single at-large U.S. House seat, they do not need to draft a congressional map.

The state legislature completed legislative redistricting during a special session that began on Nov. 8. The map was drafted by the Legislative Redistricting Committee, which had fourteen Republican members and two Democratic members. The state maintained its 47 legislative districts, but three new districts were placed near more populous areas and three districts were removed from less populous rural areas.

South Dakota

South Dakota Gov. Kristi Noem (R) signed legislation enacting the state’s new legislative districts on Nov. 10. Both chambers of the legislature approved the final proposal, known as the Sparrow map, on that day. The state House approved the new districts by a 37-31 vote and the Senate by a vote of 30-2. The South Dakota legislature began a special session to consider redistricting proposals on Nov. 8. 

The Sparrow map was a compromise proposal between two other district plans that each chamber had previously passed. The two proposals mainly differed in their approach to Native American reservations and the rural areas around Rapid City. The Sparrow map preserves Native American districts and redraws the districts covering Rapid City. 

Voters in Dover to decide city council special election on Nov. 16

The city of Dover, D.E., is holding a nonpartisan special election for District 1 on the city council on Nov. 16. The filing deadline for this election was Nov. 1.

Julia Pillsbury and Brandy Walker are running in the special election. The special election was called after Matthew Lindell resigned from his seat on the nine-seat city council after deciding to move from the district. Lindell served from 2017 to 2021.

Dover is the capital city of Delaware and the second-largest city in the state. It had an estimated population of 39,403 in 2020, according to the U.S. Census Bureau. Ballotpedia covers elections for mayor, city council, and district attorney in all capital cities in the U.S.

Louisiana to hold primaries ahead of the fall general election

Louisiana voters will decide four statewide ballot measures on Nov. 13. In addition to the ballot measures, special election primaries are being held for three seats in the Louisiana State Legislature. Ballotpedia is covering municipal elections in Baton Rouge and New Orleans. We are also covering a special election primary for a seat on the Caddo Parish Public Schools school board.

Four statewide ballot measures are certified to appear on the ballot. The measures concern taxes and the state budget. The Louisiana Constitution limits legislation and constitutional amendments in odd-numbered years to matters concerning the state’s budget, government finance, and taxation.

Special election primaries are being held for one seat in the Louisiana State Senate and two seats in the Louisiana House of Representatives. The winners of the special elections will serve until Jan. 8, 2024.

In New Orleans, primaries are being held for mayor, city council, sheriff, assessor, coroner, civil district court clerk, and criminal district court clerk. Two local judicial seats are on the ballot in Baton Rouge.

A special election primary is being held for one seat on the Caddo Parish Public Schools school board. The District 7 seat became vacant on Apr. 6 when Raymond Green resigned to spend more time with his family.

Louisiana elections use the majority-vote system. All candidates compete in the same primary, and a candidate can win the election outright by receiving more than 50% of the vote. If no candidate does, the top two vote recipients from the primary advance to the general election, regardless of their partisan affiliation.

Gov. Edwards signed an executive order on Sept. 9 postponing the state’s fall elections due to damage from Hurricane Ida. The primary, originally scheduled for Oct. 9, was changed to Nov. 13. The general election, originally scheduled for Nov. 13, was changed to Dec. 11.



Senate committee advances Federal Labor Relations Authority nominees

Senate committee advances Federal Labor Relations Authority nominees

On Nov. 3, the Senate Homeland Security and Governmental Affairs Committee advanced two nominees to serve on the Federal Labor Relations Authority (FLRA) and one nominee for FLRA general counsel.

About the nominations 

On July 13, 2021, President Joe Biden (D) re-nominated FLRA Chairman Ernest DuBester (D) to a term ending in 2024. President Barack Obama (D) first appointed DuBester 2009. Obama re-appointed DuBester in 2013 and President Donald Trump (R) appointed him to a third term in 2017. In January 2021, Biden designated DuBester as FLRA chairman, a position he also held in 2013 and 2017. 

On Aug. 9, 2021, Biden nominated Susan Tsui Grundmann (D) to replace current FLRA member James T. Abbott (R), whose term expired in July 2020. (After a member’s term expires, he or she may serve until a successor is appointed or until the end of the next congressional session.) Trump nominated Abbot in 2017. Grundmann previously chaired the Merit Systems Protection Board and currently serves as executive director of the Office of Congressional Workplace Rights.

Also on Aug. 9, Biden nominated former FLRA assistant general counsel Kurt Rumsfeld to serve as FLRA general counsel. Rumsfeld is currently chief counsel for DuBester. There has not been a permanent general counsel since Obama’s presidency. While Trump nominated Catherine Bird as general counsel in 2019, the Senate did not confirm her nomination. Biden appointed Charlotte A. Dye as acting general counsel for the FLRA in March 2021.

About the confirmation process

The Senate Homeland Security and Governmental Affairs Committee held a confirmation hearing for the nominees on Oct. 20, 2021. Sen. Kyrsten Sinema (D-Ariz.) and Sen. James Lankford (R-Okla.) gave opening statements. Sinema said the nominees “all have deep expertise in labor management issues and are well-qualified. Importantly, they all share a reputation for working in a bipartisan manner and applying the appropriate federal statutes in a fair manner.” Lankford said, “The Authority is designed to be bipartisan and it is vital we keep that balance in the years to come. All three nominees have experience in federal labor relations and have largely dedicated their careers to public service in the Federal government.” 

On Nov. 3, the 14-member committee voted 6-5 to advance the nominations to the full Senate. The vote was split along party lines with all Democratic members voting for the nominations and all Republicans against. One Democratic member and two Republican members voted by proxy. To view a list of committee members, click here.    

The nominations have been placed on the Senate’s Executive Calendar to be considered on the floor.   

About the FLRA

The three-member Federal Labor Relations Authority administers the Federal Service Labor-Management Relations Statute, which permits certain federal government employees to unionize and bargain collectively. The FLRA website outlines its responsibilities as follows:

  1. Resolving complaints of unfair labor practices.
  2. Determining the appropriateness of units for labor organization representation.
  3. Adjudicating exceptions to arbitrators’ awards.  
  4. Adjudicating legal issues relating to the duty to bargain.
  5. Resolving impasses during negotiations.

The president appoints FLRA members to serve five-year terms, unless they are appointed to fill the remainder of an unexpired term. No more than two of the three members may belong to the same political party.   

Trump nominated current FLRA member Colleen Duffy Kiko (R) to the FLRA in 2017. Kiko’s term expires in July 2022.  

What we’re reading

The big picture

Number of relevant bills by state

We are currently tracking 102 pieces of legislation dealing with public-sector employee union policy. On the map below, a darker shade of green indicates a greater number of relevant bills. Click here for a complete list of all the bills we’re tracking. 

Number of relevant bills by current legislative status

Number of relevant bills by partisan status of sponsor(s) 

Recent legislative actions

No public-sector union bills saw activity this week.



Documenting America’s Path to Recovery: November 10, 2021

Welcome to Documenting America’s Path to Recovery. We’re posting this edition a day early to account for Veterans Day on Nov. 11. 

Today we look at Pfizer’s request to give boosters to all American adults, extended coronavirus emergencies in Delaware and Tennessee, and other news since Nov. 4.

We’ll also give the latest tracking on:

  • Lawsuits about state actions and policies 
  • Vaccine distribution
  • State-level mask requirements
  • COVID-19 emergency health orders
  • School mask requirements
  • State proof-of-vaccination requirements and policies

Since our last edition

What rules and restrictions are changing in each state? For a continually updated article, click here.

Federal

  • On Nov. 9, Pfizer and BioNTech announced they had requested authorization from the Food and Drug Administration (FDA) to expand eligibility of their booster vaccination to individuals aged 18 and over. Currently, the booster is authorized for individuals aged 65 and older.
  • On Nov. 8, the United States began admitting vaccinated international travelers. Air travelers to the United States are also required to show proof of a negative coronavirus test taken within three days of their flight’s departure.
  • On Nov. 6, the Fifth Circuit Court of Appeals stayed the implementation of the Biden Administration’s vaccine requirement for companies with more than 100 employees after Texas, Louisiana, Mississippi, South Carolina, and Utah filed a joint lawsuit.

Delaware (Democratic trifecta): On Nov. 5, Gov. John Carney (D) extended the coronavirus public health emergency order in the state for an additional 30 days.

Pennsylvania (divided government): On Nov. 8, Gov. Tom Wolf (D) announced he planned to return school mask requirement authority to local school officials on Jan. 17, 2022.

South Carolina (Republican trifecta): On Nov. 4, Gov. Henry McMaster (R) issued an executive order prohibiting all state agencies in the governor’s cabinet from implementing employee vaccine requirements.

Tennessee (Republican trifecta): On Nov. 5, Gov. Bill Lee (R) announced he was extending the statewide COVID-19 state of emergency through Nov. 19.

Texas (Republican trifecta): On Nov. 8, Gov. Greg Abbott (R) signed Senate Bill 8, which allocates about $16 billion in American Rescue Plan Act funding to different state programs. The bill earmarks $7.2 billion to the state’s Unemployment Compensation Fund and $500 million to broadband internet infrastructure, with smaller amounts allocated to a range of other programs. 

Lawsuits about state actions and policies

To date, Ballotpedia has tracked 1,947 lawsuits in 50 states dealing in some way with the COVID-19 outbreak. Court orders have been issued, or settlements have been reached, in 607 of those lawsuits. 

Since Nov. 4, we have added seven lawsuits to our database. We have also tracked one additional court order and/or settlement. 

BST Holdings, L.L.C., et al. v. OSHA

On Nov. 6, the U. S. Court of Appeals for the Fifth Circuit temporarily blocked the Occupational Safety and Health Administration’s (OSHA) private-sector vaccine requirement. OSHA issued guidance on Nov. 5 that all businesses with 100 or more employees require their employees to be fully vaccinated against COVID-19 by Jan. 4th or undergo weekly testing for the virus. The temporary relief remains in effect until the court hears oral arguments in the case, which is expected to occur in the coming weeks. To date, 26 states have filed lawsuits opposing the mandate. 

Vaccine distribution

As of Nov. 9, the states with the highest vaccination rates as a percentage of total population (including children) were:

The states with the lowest rates were:

State mask requirements

Since Nov. 4, no changes to statewide mask requirements occurred. As of Nov. 10, masks were required in nine states with Democratic governors. Fourteen states with Democratic governors and all 27 states with Republican governors had no state-level mask requirements in effect.

COVID-19 emergency health orders

Governors and state agencies in all 50 states issued orders declaring active emergencies in response to the coronavirus pandemic. These orders allowed officials to access resources, like stockpiles of medical goods and equipment, unavailable to them during non-emergencies and temporarily waive or suspend certain rules and regulations. 

COVID-19 emergency orders have expired in 25 states. Emergency orders remain active in 25 states.

Since Nov. 4, no states have ended their statewide COVID-19 emergencies. 

School mask requirements

Since Nov. 4, no states changed their policies related to masks in schools.

State proof-of-vaccination requirements and policies

As COVID-19 vaccination rates have increased, state governments have enacted various rules around the use of proof-of-vaccination requirements in their states. In some cases, states have banned state or local governments from requiring that people show proof-of-vaccination. Other states have assisted in the creation of digital applications—sometimes known as vaccine passports—that allow people to prove their vaccination status and, in some cases, bypass COVID-19 restrictions.  

  • Twenty states have passed legislation or issued orders prohibiting proof-of-vaccination requirements at some or all levels of government. 
  • Five states have assisted in the creation of digital vaccination status applications or enacted orders or laws exempting vaccinated people from some restrictions.

Since Nov. 4, no states have enacted policies related to proof-of-vaccination requirements or digital vaccination status applications.  

State employee and healthcare worker vaccine requirements

The Food and Drug Administration granted Emergency Use Authorization to several COVID-19 vaccines in late 2020 and early 2021. Since then, many states have required state employees and healthcare workers to get vaccinated. In some cases, states have allowed workers to opt for regular COVID-19 testing in lieu of getting a vaccine. 

  • Fifteen states have issued a COVID-19 vaccine requirement for healthcare workers. 
  • Twenty states have issued a COVID-19 vaccine requirement for state employees.

Since Nov. 4, no states have enacted policies related to state employee or healthcare worker vaccine requirements.



Economy and Society: Bank of America warns regulatory scrutiny could halt ESG growth

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.

FINRA Chair joins the regulatory chorus

On November 3, CNBC released an interview with former co-CEO of Ray Dalio’s Bridgewater Associates Eileen Murray, who is currently the chair of the Financial Industry Regulatory Authority (FINRA), a self-regulatory organization that oversees and regulates the actions of its members. Murray joined a growing number of government officials and regulators who argue that the key to making ESG investing work is, in their view, more serious and stringent government regulation. On the specific matter of the environment she said the following:

“My skepticism is not about tackling ESG. I think we absolutely have to do that. I think the way we’re going about it, there’s a lack of consistency and standards, in terms of what’s being reported to the public. Who’s accountable? Who’s accountable for those disclosures? Right. And what is the transformation that we need to have to make ESG really real? You know, we’re polluting the planet. How are we going to stop that? And so when I stepped back, my skepticism is about – and I wouldn’t have said this 20 years ago – I really think we need regulators to step up. They have in certain parts of the world, and start to ensure that companies are applying standards and disclosure, that companies are being open about what they’re doing and transparent. 

It’s complicated. And you know, it’s evolving. So people say, “Oh, it’s too complicated. We can’t deal with it.” Well, 20 years ago, we had a lot of changes in credit exposure reporting and people thought that was very complicated. Same thing with trading analytics. So I don’t believe that this is so complicated, that smart people can’t come to solutions. But I think it’s going to take regulators, business, and educators to deal with this. And it’s an ecosystem problem. One company cannot do this alone and that’s why I think we need government and regulators. So my skepticism is not about the call to action, my skepticism is, are we doing enough? Or are we going to wait till this is a pandemic to deal with?”

Regarding the “S” in ESG (i.e. “social”) Murray said the following:

“Take DE&I – how many years has that been around?…

Diversity we’ve been talking about since I was in my 20s, which was quite a quite a long ways ago. But you know, when I first started working, diversity, it was like, 0.5% of the senior people were women and today it’s 17%. And you know Leslie, I don’t know if I should do the happy dance or cry. But we just haven’t made enough progress. And I believe had regulations been more involved, that we would be further along on diversity. I don’t think it’s just about diversity. I think it’s also about inclusion to really be successful and so I think we both know that. One of the things for example, what the NASDAQ just did, I’m not talking as the chair of FINRA, but as Eileen Murray, individual, I applaud them….

Yeah, and they’re basically saying, comply or disclose. So you either comply or you disclose. Well, what’s wrong with that? What’s the criticism about that? I just think without those kinds of movements, we’re not going to make progress. And I think history demonstrates that….I think without disclosure and transparency, it’s going to continue as it is with people focused on the urgent, people focused on short term profits, and not looking at the long term impact to their company, or socially.”

Murray argued that, in her view, government regulation and leadership are absolutely imperative:

“[I]f you asked me 20 years ago, should we have government or regulators involved in diversity, I’d say no, companies will get there, they’ll do it on their own, it’s the right thing to do, it’s great for business. Well, I was wrong. I was dead wrong….

And, and what I have seen work is when regulations come out and say, “Thou shalt report on the following things, and it will be disclosed.” And directors will have fiduciary responsibilities to see that it’s done well, and CEOs will be held accountable through compensation. I see that really work.”

But not everyone thinks more regulation will help

As FINRA’s chair was arguing for greater regulation of the ESG industry, Bank of America was arguing that any such increase would stall the growth in ESG and, thereby, stall the progress its advocates argue it’s making. ETF Stream notes the following:

“The boom in environmental, social and governance (ESG) asset gathering could hit a stumbling block as global regulators intensify scrutiny of financial products amid greenwashing fears, the Bank of America (BofA) has suggested.

In a research note published last Thursday, the BofA said investors should be more cautious in labelling their products ESG in the face of a regulatory clampdown, adding it expects asset managers to temper their ESG assets under management (AUM) figures as a result of stricter definitions.

Last year was a record year for ESG inflows with the rise of products claiming to adhere to climate or ESG considerations reaching $1.7trn AUM by the end of 2020.

Globally, ESG funds AUM is growing at three times the rate of non-ESG funds, BofA said.

However, the scale of greenwashing in the asset management industry was laid bare last month after it emerged 71% of equity funds falling into the broad ESG category were misaligned with on the Paris Aligned Benchmark, according to research from think-tank InfluenceMap.

As a result, BofA said ESG AUM inflows could stall as regulatory oversight intensifies.

Menka Bajaj, EMEA ESG strategist at BofA, said: “Given the surge in ESG financial products, global regulators are ramping up the review of sustainability statements for compliance with current law.

“We believe investors should reconsider their ESG criteria and be more cautious when making claims about green/social investments….””

On Wall Street and in the private sector

Effects of ESG investing driving inflation 

Bill Ackman, the activist investor who is the founder and CEO of Pershing Square Capital Management, has arguedand has, most notably, argued to the Federal Reserve Bank of New Yorkthat the Fed, its interest rate policies, and the effects of ESG investing are driving inflation too far, too fast. On November 4, Markets Insider (a publication of Business Insider) had the details:

“Bill Ackman believes initiatives related to ESG investing are contributing to a surge in inflation, and that the Federal Reserve is not paying attention….

“Central bankers have not considered how inflationary ESG initiatives are. ESG is not transitory, but rather persistent and growing. Stakeholder capitalism will drive much needed increases in wages, but also higher energy costs, among other inflationary factors,” Ackman tweeted on Wednesday.

ESG’s focus on companies that implement various environmental, social, and governance practices has shifted investment away from lower-cost fossil fuel energy and towards higher-cost renewable energy. Some on Wall Street have warned that energy prices are spiking now because years of underinvestment in oil, gas and coal resulted in lagging supplies….

In a tweet last month, the billionaire investor said the Fed should taper its bond buying program and raise interest rates as soon as possible. Fed Chairman Jerome Powell, however, has indicated that the central bank likely won’t begin to raise interest rates until 2023….”

New tools for private company ESG disclosure

Last Tuesday, Institutional Investor magazine ran a piece making the case that, as its title put it, “It’s Time for Private Companies to Come Clean on ESG.” In it, writer Hannah Zhang made her case thusly:

“Private companies are under pressure to disclose more data relating to their performance on environmental, social, and governance issues….

Larry Lawrence, executive director and head of ESG products for the wealth management market at MSCI ESG Research, said that public companies have been publishing ESG data in their financial reports, making it easier for investors and rating agencies to track their performance on these measures. But when it comes to alternative assets, including private equity and private debt, “there’s really little to no information,” Lawrence said.

To address the transparency gap in the private markets, MSCI constructed an ESG analytic tool to be similar to the ones it designed for the public markets. And it chose to tackle the “E” element first through a partnership with Burgiss, a data and analytics provider focused specifically on private markets and based in Hoboken, New Jersey. 

Starting in October, the index provider has been tracking the carbon footprint of private assets by using market information collected by Burgiss and a model it has developed. The new analytical tool can now estimate carbon emissions for more than 15,000 private companies and nearly 4,000 active private equity and debt funds.”

But is a new tool necessary?

The demand for disclosureand the creation of this new tool for creating estimatesmight not be entirely necessary, some argue. As Institutional Investor itself reported only a week before:

“Investing with environmental, social, and governance goals is quickly climbing in private markets.

Asset managers committed to ESG investing now oversee an aggregate $3.1 trillion, or 36 percent of the value of total global private market assets, as of October, according to a Preqin report released Wednesday….

According to the report, larger asset managers disclose more information about ESG, and the average ESG transparency metric becomes more robust as the funds’ assets increase….

There’s no question that private capital is the future of ESG, said Yury Yakubchyk, CEO and co-founder of Elemy, a privately held business-to-business platform that connects users with in-home pediatric healthcare providers. As a business with a socially-driven mission, Elemy has attracted high-profile investors, including Pershing Square’s Bill Ackman.

“The mentality that I’m detecting from investors is that, over the past few years, Silicon Valley has gravitated more toward mission-oriented businesses,” Yakubchyk told Institutional Investor. “Now, the financial and investment community is playing catch up. I’ve had investors point-blank tell me that if a company doesn’t have a mission that makes sense to their LPs, they’re not going to invest.””

In the spotlight

Professor Luigi Zingales argues “Democracy before ESG”

In a recent piece published by Project Syndicate, University of Chicago Finance Professor Luigi Zingales made the case that supporting and promoting democracy must be the first step in any realistic and legitimate ESG investment scheme:

“Amid growing concerns about climate change and social unrest, institutional investors are increasingly applying environmental, social, and governance criteria in their portfolio decisions. Yet while ESG factors are important for investors to consider, the new focus risks obscuring an even bigger issue: the role that corporations play in the democratic process.

What do corporations have to do with democracy? In fact, many corporations play a leading role in distorting the democratic process, the proper function of which is to transform popular will into legislative action. Let me illustrate the point with examples from the United States, which used to be considered the world’s most advanced democracy.

In 2019, Ohio’s Republican-controlled state legislature passed House Bill 6, which provided $1 billion in subsidies to bail out FirstEnergy Solutions, a nuclear-plant subsidiary of an electric utility. The bill was hardly an expression of the will of the people of Ohio. On the contrary, a dark-money group, Generation Now, has since pleaded guilty to charges of carrying out a massive bribery scheme to secure approval for the bailout. Generation Now backed the campaigns of 21 different state-level candidates, including the Speaker of the House, Larry Householder, who also received more than $400,000 in personal benefits.

And if this was not bad enough, when Ohioans started collecting signatures for a referendum to abolish HB6, Generation Now launched an ad campaign claiming that the Chinese would take over the state’s power grid if the repeal was successful. A local news outlet also found that the group had “hired ‘blockers’ who followed, encircled, harassed, and (in a couple cases) physically hit petition gatherers.” It was later revealed that Generation Now was founded with $56.6 million from FirstEnergy Solutions, but this scandal would never even have been exposed if not for an FBI investigation.

Since this episode seems to belong more in 1950s Guatemala than in twenty-first-century America, can we dismiss it as an isolated case, limited to one bad company, one state, or just the Republican Party? Unfortunately, we cannot….

The first principle of responsible investing, then, is to ensure that corporations are not violating or rewriting the rules of the democratic game, either at home or abroad.”