Author

Jerrick Adams

Jerrick Adams is a staff writer at Ballotpedia. Contact us at editor@ballotpedia.org.

Redistricting review: New Jersey Republicans request clarification from secretary of state about how to count incarcerated individuals

On July 26, the New Jersey Globe reported that the Republican leaders of New Jersey’s redistricting commissions had requested clarification from Secretary of State Tahesha Way (D) on how incarcerated people in the state should be counted in reapportionment and redistricting processes. Under S758, passed in 2020, New Jersey must count incarcerated individuals at their last known residential address for the purposes of legislative redistricting, rather than the location of their incarceration at the time of the census. A698, which currently awaits action from Gov. Phil Murphy (D), would expand that requirement to redistricting for municipal, county, school board, and congressional purposes.

Under S758 and A698, the secretary of state must submit an apportionment report based on numbers from the New Jersey Department of Corrections (DOC). Legislative Apportionment Commission Republican Chairman Al Barlas and Congressional Redistricting Commission GOP Chairman Doug Steinhardt said in their request to Way that the U.S. Census Bureau’s use of differential privacy in the 2020 census would produce data inconsistent with DOC data because “this statistical technique deliberately manipulates census data to assertedly protect the confidentiality of respondents by introducing ‘statistical noise; into both population totals and demographic characteristics.” “Barlas and Steinhardt asked whether there was a plan for “addressing the consequences of differential privacy with regard to New Jersey’s prison populations [and] … how will discrepancies between census and DOC data be rectified.”

Barlas and Steinhardt requested that Way respond by Aug. 2.

In other redistricting news, public redistricting hearings are scheduled in Indiana, South Carolina, Washington, and Virginia.

Additional reading:

Redistricting in New Jersey after the 2020 census

Redistricting in Indiana after the 2020 census

Redistricting in South Carolina after the 2020 census

Redistricting in Washington after the 2020 census

Redistricting in Virginia after the 2020 census



U.S. Supreme Court issues decision in donor disclosure case. What comes next?

U.S. Supreme Court issues decision in donor disclosure case. What comes next?

On July 1, the U.S. Supreme Court issued its decision in Americans for Prosperity Foundation v. Bonta, striking down a California policy that required nonprofits to disclose their donors’ identities to the state’s attorney general. 

What comes next in the wake of this decision? First, we’ll discuss the case background and the Supreme Court’s ruling, then we’ll turn our attention to the implications of that ruling. 

What’s at issue, and how lower courts have ruled

The California policy in question required nonprofits to file copies of their IRS 990 forms with the state. Form 990 includes Schedule B, which contains the names and addresses of all individuals who donated more than $5,000 to the nonprofit in a given tax year. Although the law did not allow the public access to Schedule B information, court documents show that inadvertent disclosures had occurred. 

In 2014, Americans for Prosperity challenged the law in U.S. district court, triggering a series of legal developments spanning several years:

  • 2014: Americans for Prosperity Foundation (AFPF), a 501(c)(3) nonprofit, filed suit in U.S. district court, alleging that the California law violated its First Amendment rights. 
  • 2015: The Thomas More Law Center (TMLC), also a 501(c)(3) nonprofit, filed a similar suit in the same U.S. district court. 
  • 2016: Judge Manuel Real of the U.S. District Court for the Central District of California found in favor of AFPF and barred the state from collecting the group’s Schedule B information. In a separate 2016 ruling, Real also found in favor of TMLC and prevented the state from collecting the group’s Schedule B information. Real was appointed to the court by Lyndon Johnson (D).
  • 2018: The two suits were combined on appeal. A three-judge panel of the U.S. Court of Appeals for the Ninth Circuit unanimously overturned Real’s rulings in 2018. Judges Raymond Fisher, Richard Paez, and Jacqueline Nguyen issued the ruling. Fisher and Paez are Bill Clinton (D) appointees. Barack Obama (D) appointed Nguyen.
  • 2019: The plaintiffs petitioned the Ninth Circuit for en banc review. That petition was rejected March 29, 2019. On Aug. 26, 2019, the plaintiffs appealed to the Supreme Court.
  • 2021: On Jan. 8, the U.S. Supreme Court agreed to take up the consolidated appeal. Oral argument took place on April 26.

How the Supreme Court ruled   

The Supreme Court ruled 6-3 in favor of the plaintiffs, striking down the California law.  Chief Justice John Roberts, a George W. Bush (R) appointee,  wrote the majority opinion. Roberts said, “California has an important interest in preventing wrongdoing by charitable organizations.” But, he went on to say that there was “a dramatic mismatch” between that interest and California’s donor disclosure requirements. He wrote: “The upshot is that California casts a dragnet for sensitive donor information from tens of thousands of charities each year, even though the information will become relevant in only a small number of cases involving filed complaints.” Roberts added, “In reality, then, California’s interest is less in investigating fraud and more in ease of administration.” He said that interest did not “reflect the seriousness of the actual burden that the demand for Schedule Bs imposes on donors’ association rights.” 

Justices Clarence Thomas, Samuel Alito, Neil Gorsuch, Brett Kavanaugh, and Amy Coney Barrett – all of whom were appointed by Republican presidents – concurred in the judgment. 

Alito, Gorsuch, and Thomas declined to join some parts of the majority opinion, disagreeing about whether an exacting scrutiny or strict scrutiny standard should be applied in cases like this. Under the exacting scrutiny standard, a law that infringes on a constitutional right will be upheld only if it is narrowly tailored to advance a compelling government interest. The strict scrutiny standard, which is more stringent, requires that a challenged law be narrowly tailored using the least restrictive means available to serve a compelling government interest.

In the majority opinion, Roberts said the exacting scrutiny standard should be applied to all cases of this type. Alito said he was “not prepared at this time to hold that a single standard applies to all disclosure requirements.” Gorsuch joined Alito in this opinion. In his concurrence, Thomas said the court should have invoked the strict scrutiny standard because “our precedents require application of strict scrutiny to laws that compel disclosure of protected First Amendment association.” 

Justice Sonia Sotomayor wrote a dissent, joined by Justices Stephen Breyer and Elena Kagan – all Democratic appointees. Sotomayor said the majority opinion “discards [the Supreme Court’s] decades-long requirement that, to establish a cognizable burden on their associational rights, plaintiffs must plead and prove that disclosure will likely expose them to objective harms, such as threats, harassment, or reprisals.” Sotomayor added, “The evidence shows that California’s confidential reporting requirement imposes trivial burdens on petitioners’ associational rights and plays a meaningful role in [state] attorneys’ ability to identify and prosecute charities engaged in malfeasance,” which she said is “more than enough to satisfy the First Amendment.” 

What are the reactions, and what comes next

Bartlett Cleland, counsel and chief strategy and innovation officer for the American Legislative Exchange Council, and Lee E. Goodman, a former chairman of the Federal Election Commission, wrote the following in an op-ed praising the Supreme Court’s ruling in Americans for Prosperity Foundation v. Bonta

Fortunately, six Justices reaffirmed in definitive terms the First Amendment’s powerful protection for speech, assembly, and privacy.  In striking the California donor disclosure rule, they demonstrate that they understand the history of government abuses and the need for people to be secure in their associations and the importance of conscience to freedom.

It is unclear how this ruling will affect donor disclosure and privacy laws in other states. David Strauss, a law professor at the University of Chicago, said

The Court has tried to draw a line between disclosures that are really going to hurt people … and disclosures that are unlikely to be harmful. The question is whether, after this decision, the Court is still going to try to draw that line, or is instead going to say: disclosure laws of all kinds risk chilling speech.

Rick Hasen, a law professor at the University of California, Irvine, said that the Supreme Court’s ruling could affect campaign finance laws more broadly:

The court’s ruling calls into question a number of campaign finance disclosure laws. Perhaps even more significant, it also threatens the constitutionality of campaign contribution laws, which are judged under the “exacting scrutiny” standard, too. Lower courts can now find that such laws are not narrowly tailored to prevent corruption or its appearance or do not provide voters with valuable information — two interests the court recognized in the past to justify campaign laws.

The big picture

Number of relevant bills by state: We’re currently tracking 39 pieces of legislation dealing with donor disclosure and privacy. 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 legislative actions have been taken on relevant bills since our last issue.

Thank you for reading! Let us know what you think! Reply to this email with any feedback or recommendations. 



Union Station: Sixth Circuit rules Janus does not invalidate mandatory bar membership

Sixth Circuit rules Janus does not invalidate mandatory bar membership  

On July 15, the U.S. Court of Appeals for the Sixth Circuit upheld a 2020 ruling from the U.S. District Court for the Western District of Michigan which found that the U.S. Supreme Court’s 2018 decision in Janus v. AFSCME does not invalidate mandatory bar association membership. 

The Sixth Circuit’s decision is the fourth appellate ruling on mandatory bar membership in recent weeks. The Tenth Circuit ruled on a challenge to the Oklahoma Bar Association and the Fifth Circuit ruled on challenges to the Louisiana State Bar Association and the State Bar of Texas. 

While the courts’ decisions in those three cases addressed the bars’ political or ideological activities, the plaintiff in this case did not allege that the State Bar of Michigan had funded impermissible activity and relied solely on Janus to overturn the membership requirement. In Keller v. State Bar of California, a 1990 decision cited in each of these rulings, the U.S. Supreme Court held that state bars may “constitutionally fund activities germane to those goals out of the mandatory dues of all members” but may not “fund activities of an ideological nature which fall outside of those areas of activity.” 

Parties to the suit

The plaintiff is Lucille Taylor, a Michigan attorney. The Mackinac Center Legal Foundation, which describes itself as a “public interest law firm that works to advance individual freedom and the rule of law in Michigan and across the country,” represents Taylor. The defendants are the president, president-elect, vice president, secretary, and treasurer of the State Bar of Michigan Board of Commissioners in their official capacities. Warner Norcross & Judd represents the defendants. 

What’s at issue, and how the lower court ruled

Taylor filed her lawsuit in the U.S. District Court for the Western District of Michigan on Aug. 22, 2019. In the complaint, Taylor’s attorneys said, “In Janus, the Supreme Court stated that mandatory union dues or fees paid by public employees, which are similar to the bar dues at issue here, violated the employees’ free speech Rights … Previously, the United States Supreme Court upheld mandatory bar dues in Keller v. State Bar of California … relying on the reasoning of Abood v. Detroit Board of Education … However, Janus explicitly overruled Abood, calling into question Keller and other opinions that followed the reasoning of Abood.” Taylor asked the court to declare that mandatory bar membership violated her First and Fourteenth Amendment rights. 

On Sep. 8, 2020, the district court ruled in favor of the defendants. Judge Robert Jonker, a George W. Bush (R) appointee, wrote:

[T]he Court is satisfied that whatever wading [into the issues] needs to be done must happen in a higher Court because the Supreme Court has squarely decided the issues framed here in favor of the defendants. …

Plaintiff accepts that Lathrop and Keller rejected the claims she is making here, but urges this Court to revisit them in light of a line of Supreme Court authority culminating in Janus that, according to Plaintiff, calls into question the continuing validity of the holdings. This Court has no power to do that. 

Taylor appealed to the U.S. Court of Appeals for the Sixth Circuit in October 2020. 

How the Sixth Circuit ruled

On July 15, a three-judge panel of the U.S. Court of Appeals for the Sixth Circuit—Senior Judge Eugene Siler, Judge Karen Moore, and Judge Amul Thapar—upheld the district court ruling. 

Moore wrote

To Taylor’s credit, she acknowledges that Lathrop and Keller are an insurmountable hurdle if they remain good law. Taylor concedes that her compulsory membership in the State Bar of Michigan does not offend the First Amendment under either case. … And while the State Bar of Michigan does engage in advocacy germane to the legal profession, Taylor concedes that its activities do not cross the line set in Keller. … Instead, Taylor argues that Lathrop and Keller no longer bind this court because of intervening precedent in the form of Janus

Our cases are clear that we may not disregard Supreme Court precedent unless and until it has been overruled by the Court itself. … Even where intervening Supreme Court decisions have undermined the reasoning of an earlier decision, we must continue to follow the earlier case if it “directly controls” until the Court has overruled it. …

Here, the district court correctly concluded that Lathrop and Keller continue to bind the lower courts despite the Court’s ruling in Janus.

George H.W. Bush (R) nominated Siler to the court, Bill Clinton (D) nominated Moore, and Donald Trump (R) nominated Thapar.  

The case name and number are Taylor v. Buchanan et. al (20-2002).

About the Sixth Circuit  

The U.S. Court of Appeals for the Sixth Circuit hears appeals from the district courts within its jurisdiction, which includes Kentucky, Michigan, Ohio, and Tennessee. The chief judge of the court is Jeffrey Sutton, a George W. Bush appointee. Of the court’s 16 active judges, Clinton appointed three, George W. Bush appointed five, Barack Obama (D) appointed two, and Trump appointed six.  

What we’re reading

The big picture

Number of relevant bills by state

We are currently tracking 98 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. 

  • Massachusetts H1946: This bill would allow public-sector employees to strike.
    • Democratic sponsorship. 
    • Joint Labor and Workforce Development Committee hearing held July 13. 
  • Massachusetts H2038: This bill would amend the laws governing strikes by public-sector workers.
    • Bipartisan sponsorship.
    • Joint Labor and Workforce Development Committee hearing held July 13.
  • Massachusetts H2060, H2061: This bill would establish that the personal contact information of public-sector workers cannot be made public. It would allow such information to be disclosed to labor unions.
    • Democratic sponsorship.
    • Joint Labor and Workforce Development Committee hearing held July 13. 
  • Massachusetts S1245: This bill would amend the laws governing strikes by public-sector workers. 
    • Bipartisan sponsorship.
    • Joint Labor and Workforce Development Committee hearing held July 13. 

Thank you for reading! Let us know what you think! Reply to this email with any feedback or recommendations.



Redistricting review: Michigan Supreme Court declines to extend redistricting deadlines

In this week’s Redistricting Review, we cover news out of Michigan, New York, and Pennsylvania.

Michigan: On July 9, the Michigan Supreme Court rejected the Michigan Independent Citizens Redistricting Commission’s request to extend the constitutional deadlines for adopting new redistricting plans. The constitutional deadlines – presentation to the public by Sept. 17 and adoption by Nov. 1 – remain in effect.

In light of the delayed delivery of detailed redistricting data by the U.S. Census Bureau, the commission argued that it would “not be able to comply with the constitutionally imposed timeline.” Instead, the commission asked the state supreme court to direct the commission to propose plans within 72 days of the receipt of redistricting data and to approve plans within 45 days thereafter.

The state supreme court asked the Office of the Attorney General to assemble two separate teams to make arguments, one team in support of the commission’s request and another opposed. The court heard oral arguments on June 21. Deputy Solicitor General Ann Sherman, speaking in support of the proposed deadline extensions, said “The very maps themselves could be challenged if they are drawn after the November 1 deadline.” Assistant Attorney General Kyla Barranco, speaking in opposition, said, “There isn’t harm in telling the commission at this point, ‘Try your best with the data that you might be able to use and come September 17, maybe we’ll have a different case.'”

In its unsigned July 9 order, the court said that it was “not persuaded that it should grant the requested relief.” Justice Elizabeth Welch wrote a concurrence, in which she said, “The Court’s decision is not a reflection on the merits of the questions briefed or how this Court might resolve a future case raising similar issues. It is indicative only that a majority of this Court believes that the anticipatory relief sought is unwarranted.”

In response to the court’s order, Edward Woods III, the commission’s communications and outreach director, said that the commission would follow its draft timeline, under which the public input period opens on Aug. 30 and closes on Sept. 30 – past the Sept. 17 constitutional deadline. This suggests that further litigation on the matter might occur.

New York: On July 12, the New York Independent Redistricting Commission (NYIRC) announced that public hearings will begin on July 20. A full list of hearing dates can be accessed here. NYIRC also said it would release its first redistricting proposal on Sept. 15.

Pennsylvania: On July 12, redistricting authorities in Pennsylvania launched a redistricting website and announced a schedule for public hearings on congressional redistricting, the first of which will take place on July 22. A full list of hearing dates can be accessed here.

Additional reading:

Redistricting in Michigan after the 2020 census

Redistricting in New York after the 2020 census

Redistricting in Pennsylvania after the 2020 census



Union Station: District court rulings on mandatory bar membership cases reversed

Fifth Circuit reverses district court rulings on two mandatory bar membership cases

On July 2, a three-judge panel of the U.S. Court of Appeals for the Fifth Circuit ruled in favor of plaintiffs challenging mandatory bar membership in Louisiana and Texas, two of 31 states that require lawyers to join the state bar association. 

Boudreaux v. Louisiana State Bar Association

About the case

The plaintiff is Randy Boudreaux, a Louisiana attorney. Attorneys from the Goldwater Institute, the Pelican Institute for Public Policy’s Center for Justice, Peragine Law Firm LLC, and Dane S. Ciolino LLC represent Boudreaux. The defendants are the Louisiana State Bar Association (LSBA), the Louisiana Supreme Court, and the justices of the Louisiana Supreme Court in their official capacities. Stanley, Reuter, Ross, Thornton & Alford LLC represent the defendants.     

On Aug. 1, 2019, Boudreaux filed a complaint in the U.S. District Court for the Eastern District of Louisiana challenging the constitutionality of the LSBA’s mandatory dues and membership on the grounds that they violated attorneys’ First and Fourteenth Amendment rights. Boudreaux said the LSBA lacked sufficient safeguards to ensure it did not use fees to fund political speech. 

On Jan. 13, 2020, the district court ruled in favor of the defendants, dismissing the case for lack of jurisdiction and failure to state a claim. Boudreaux appealed to the Fifth Circuit in February 2020. 

On July 2, 2021, a three-judge panel of the U.S. Court of Appeals for the Fifth Circuit reversed the district court’s ruling and remanded the case to the lower court. Judge Don Willett, a Donald Trump (R) appointee, wrote

[Boudreaux] claims that compelled dues and membership violate his First Amendment rights, as does LSBA’s failure to ensure that his dues are not used to fund the bar’s political and ideological activities. The district court dismissed all of Boudreaux’s claims. We reverse. …

Discovery may bear out that LSBA does not actually engage in any non-germane activity. But at this stage, we take Boudreaux’s allegations as true and draw all reasonable inferences in his favor. Under that standard, dismissing his freedom of association claim as foreclosed by [Keller v. State Bar of California] was error. …

The Constitution requires that bar members be able to challenge expenditures as non-germane, but Boudreaux alleges he is unable to do so because of LSBA’s deficient notice process. His inability to identify non-germane expenditures is his injury, not the non-germane expenditures themselves. … By alleging that LSBA does not regularly provide notice of its expenditures with sufficient specificity, Boudreaux has pleaded an injury-in-fact for the claim he is pursuing. Dismissing his claim for lack of standing was therefore error.

Judges Jerry E. Smith, a Ronald Reagan (R) appointee, and Stuart Kyle Duncan, a Trump appointee, joined the opinion.   

The case name and number are Boudreaux v. Louisiana State Bar Association (20-30086).

Perspectives

  • Sarah Harbison, general counsel for the Pelican Institute, said: “Since at least 2007, the Bar has used member dues to take positions on bills related to civics curriculum, midwives, tort reform, and other issues. These issues are unrelated to the practice of law and lawyers should not be forced to subsidize this activity as a condition of practicing their chosen profession.”
  • Louisiana State Bar Association president H. Minor Pipes III said: “The LSBA for years has focused on ensuring that its activities and expenditures are germane to regulating or improving the legal profession. … Although we would have preferred an affirmation from the 5th Circuit, we are confident that the courts will confirm that our procedures safeguard against the Bar engaging in political and ideological activities. While we await further guidance from the Eastern District we will continue to work for the lawyers of Louisiana through our regulation of the practice of law and myriad member services and programs.”

McDonald v. Longley

About the case

The plaintiffs are Texas attorneys Tony McDonald, Joshua Hamme, and Mark Pulliam. Consovoy Mccarthy PLLC represents the plaintiffs. The defendants are Joe Longley, the immediate past president of the State Bar of Texas, Randall Sorrels, the president of the State Bar of Texas, and three members of the State Bar Board of Directors. Vinson & Elkins LLP represent the defendants.   

On March 6, 2019, the plaintiffs filed their complaint in the U.S. District Court for the Western District of Texas, claiming mandatory membership in the State Bar of Texas violated their First and Fourteenth Amendment rights, and that the state bar’s “procedures are inadequate to  ensure that members are not coerced into funding the Bar’s political and ideological activities.”

On May 29, 2020, the district court granted the defendant’s motion for summary judgment, stating: “[b]ecause the Bar has adequate procedural safeguards in place to protect against compelled speech and because mandatory Bar membership and compulsory fees do not otherwise violate the First Amendment, Plaintiffs’ claim that the Bar unconstitutionally coerces them into funding allegedly non-chargeable activities without a meaningful opportunity to object necessarily fails as a matter of law.” The plaintiffs appealed to the Fifth Circuit in June 2020.  

On July 2, 2021, the same Fifth Circuit panel ruled in favor of the plaintiffs, overturning the district court’s ruling, remanding the case back to the lower court, and blocking the state bar from requiring membership or dues of the plaintiffs while the case is pending in the lower court.  Judge Smith penned the opinion in this case. He wrote

In sum, the Bar is engaged in non-germane activities, so compelling the plaintiffs to join it violates their First Amendment rights. There are multiple other constitutional options: The Bar can cease engaging in non-germane activities; Texas can directly regulate the legal profession and create a voluntary bar association, like New York’s; or Texas can adopt a hybrid system, like California’s. But it may not continue mandating membership in the Bar as currently structured or engaging in its current activities. … 

The Bar’s procedures are inadequate under [Chicago Teachers Union, Local No. 1, AFT, AFL-CIO v. Hudson]. The Bar does not furnish Texas attorneys with meaningful notice regarding how their dues will be spent. Nor does it provide them with any breakdown of where their fees go. Instead, it places the onus on objecting attorneys to parse the Bar’s proposed budget—which only details expenses at the line-item level, often without significant explanation—to determine which activities might be objectionable. … 

The district court erred in its reading of [Lathrop v. Donohue] and Keller and in its application of Keller’s germaneness test to the Bar’s activities. We therefore VACATE the summary judgment, RENDER partial summary judgment in favor of the plaintiffs, and REMAND for the court to determine the full scope of relief to which plaintiffs are entitled. We additionally REVERSE the denial of plaintiffs’ motion for a preliminary injunction and RENDER a preliminary injunction preventing the Bar from requiring the plaintiffs to join or pay dues pending completion of the remedies phase.

The case name and number are McDonald v. Longley (20-50448).

Perspectives

  • The Cato Institute, a libertarian think tank, said: the State Bar of Texas “overstepped its constitutional bounds by delving into issues that neither regulated the legal profession nor improved the quality of legal services in the state,” and that the ruling provided “a glimmer of hope to lawyers across the country and a win for the free speech rights of Texas lawyers.” 
  • State Bar of Texas executive director Trey Apffel said: “We continue to believe the State Bar’s legislative program and all of its access to justice initiatives are germane to regulating the legal profession and improving the quality of legal services, and respectfully disagree with the panel’s contrary conclusion. We are assessing the bar’s next steps in light of the panel’s opinion.”

About the Fifth Circuit

The U.S. Court of Appeals for the Fifth Circuit hears appeals from the district courts within its jurisdiction, which includes Louisiana, Mississippi, and Texas. The chief judge of the Fifth Circuit is Priscilla Owen, a George W. Bush (R) appointee. Of the court’s 17 active judges, Reagan appointed two, Bill Clinton (D) appointed two, George W. Bush appointed four, Barack Obama (D) appointed three, and Trump appointed six.  

What we’re reading

The big picture

Number of relevant bills by state

We are currently tracking 97 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. 

  • Massachusetts H2038: This bill would amend the laws governing strikes by public-sector workers.
    • Bipartisan sponsorship.
    • Joint Labor and Workforce Development Committee hearing July 13.
  • Massachusetts H2060: This bill would establish that the personal contact information of public-sector workers cannot be made public. It would allow such information to be disclosed to labor unions.
    • Democratic sponsorship.
    • Joint Labor and Workforce Development Committee hearing July 13.
  • Massachusetts H2061: This bill would establish that the personal contact information of public-sector workers cannot be made public. It would allow such information to be disclosed to labor unions. 
    • Democratic sponsorship.
    • Joint Labor and Workforce Development Committee hearing July 13.
  • Massachusetts S1245: This bill would amend the laws governing strikes by public-sector workers. 
    • Bipartisan sponsorship.
    • Joint Labor and Workforce Development Committee hearing July 13.



Redistricting review: Virginia House of Delegates candidate sues over 2021 elections using existing maps (and other news)

Virginia: On June 28, Paul Goldman, a candidate for the Virginia House of Delegates, filed suit against Gov. Ralph Northam (D) and the Virginia State Board of Elections (among other state officials), asking that a U.S. District Court declare the Nov. 3, 2021, elections for the House of Delegates invalid, limit the terms of delegates elected in 2021 to one year, and order new elections to take place in 2022. Because members of the House of Delegates serve two-year terms, a court order to this effect would result in elections in three consecutive years: 2021, 2022, and 2023.

The Constitution of Virginia requires that elections for the House of Delegates take place every two years on the Tuesday following the first Monday in November. Regularly scheduled elections occur in odd-numbered years. Because of the delayed release of U.S. Census redistricting data, redistricting authorities in Virginia were unable to draft new legislative district maps for this year’s elections. Consequently, existing maps will remain in force. Goldman argues that conducting the 2021 elections under the existing maps violates both the state and federal constitutions. Citing Cosner v. Dalton, a 1981 decision in which a federal court ordered the terms of delegates elected in 1981 under invalid maps be limited to one year, Goldman is asking that the court limit the terms of delegates elected in 2021 to one year and schedule elections under new maps in 2022.

In his complaint, Goldman said, “According to Cosner, plaintiff’s protected core political rights should allow him to run for the House of Delegates in 2022, not being forced to wait until 2023 due to the failure of the appropriate state authorities to adhere to the requirements of the federal constitution.”

Del. Marcus Simon (D), who serves on the Virginia Redistricting Committee, said the Cosner precedent does not necessarily apply to this situation: “In the 1980s, we deprived people of their civil rights, we had racially improper districts. Given the circumstances for why we don’t have districts today, I don’t know that the same urgency would apply.”

Utah: On June 30, the Utah State Legislature announced an anticipated timeline for congressional and state legislative redistricting. Under that timeline, the Legislative Redistricting Committee will hold public hearings in September and October and adopt final maps before Thanksgiving.

Wisconsin: On June 30, Assembly Speaker Robin Vos (R) and Senate Majority Leader Devin LeMahieu (R) petitioned the Wisconsin Supreme Court to reverse a lower court’s ruling that barred them from hiring private attorneys in anticipation of challenges to the redistricting process. The court set a July 8 deadline for briefs from all parties involved in the matter.

On April 29, Dane County Circuit Judge Stephen Ehlke ruled against Vos and LeMahieu and in favor of the plaintiffs, four Madison, Wisc., residents who argued that state law prohibits legislative leaders from hiring attorneys from outside the Wisconsin Department of Justice before a lawsuit has been filed. Vos and LeMahieu appealed that decision to a state appellate court, which declined to stay Ehlke’s original order. This prompted the present appeal pending before the state supreme court.

Additional reading:



U.S. Supreme Court upholds Arizona voting policies

Ballot Bulletin

Welcome to The Ballot Bulletin, where we track developments in election policy at the federal, state, and local levels. In this month’s issue, we cover the following:

  1. U.S. Supreme Court upholds Arizona voting policies
  2. Redistricting round-up: Colorado redistricting commissions release preliminary congressional, state legislative maps (and other news)
  3. Legislation update

Have a question/feedback/or just want to say hello? Respond to this email, or drop me a line directly at Jerrick@Ballotpedia.org.

U.S. Supreme Court upholds Arizona voting policies

On July 1, the U.S. Supreme Court ruled 6-3 that two Arizona voting policies – one barring the counting of a ballot cast in person on Election Day outside a voter’s assigned precinct, and the other limiting who may return a voter’s absentee/mail-in ballot  – did not violate Section 2 of the Voting Rights Act. The case name is Brnovich v. Democratic National Committee.

How we got here

The Democratic Party filed suit in U.S. District Court over the two policies in 2016. The suit alleged that both violated the First, Fourteenth, and Fifteenth Amendments to the U.S. Constitution and Section 2 of the Voting Rights Act “by adversely and disparately impacting the electoral opportunities of Hispanic, African American, and Native American Arizonans.” 

In October 2017, the U.S. District Court heard oral arguments on the merits, ultimately ruling in favor of the state and upholding the policies. On appeal, a divided three-judge panel of the U.S. Court of Appeals for the Ninth Circuit affirmed the lower court’s ruling. In an en banc rehearing (i.e., a rehearing before all active judges on the court), the Ninth Circuit reversed the panel’s decision. A 7-4 majority ruled that the out-of-precinct policy violated Section 2 of the Voting Rights Act. A 6-5 majority ruled that the ballot-collection law violated Section 2 and the Fifteenth Amendment. Arizona Attorney General Mark Brnovich (R), in his official capacity, and the Arizona Republican Party, appealed to the U.S. Supreme Court.

The ruling

Justice Samuel Alito delivered the court’s opinion, which Chief Justice John Roberts and Justices Clarence Thomas, Neil Gorsuch, Brett Kavanaugh, and Amy Coney Barrett joined. Alito wrote:

“After a trial, a District Court upheld these rules, as did a panel of the United States Court of Appeals for the Ninth Circuit. But an en banc court, by a divided vote, found them to be unlawful. It relied on the rules’ small disparate impacts on members of minority groups, as well as past discrimination dating back to the State’s territorial days. And it overturned the District Court’s finding that the Arizona Legislature did not adopt the ballot-collection restriction for a discriminatory purpose. We now hold that the en banc court misunderstood and misapplied §2 and that it exceeded its authority in rejecting the District Court’s factual finding on the issue of legislative intent.”

Justice Elena Kagan wrote a dissent, joined by Justices Stephen Breyer and Sonia Sotomayor. Kagan wrote: 

“Today, the Court undermines Section 2 and the right it provides. The majority fears that the statute Congress wrote is too ‘radical’—that it will invalidate too many state voting laws. See ante, at 21, 25. So the majority writes its own set of rules, limiting Section 2 from multiple directions. Wherever it can, the majority gives a cramped reading to broad language. And then it uses that reading to uphold two election laws from Arizona that discriminate against minority voters.”


Redistricting round-up: Colorado redistricting commissions release preliminary congressional, state legislative maps (and other news)

Today’s redistricting round-up includes news from: 

  • Colorado, where the state’s independent redistricting commissions have released preliminary congressional and state legislative maps; 
  • Alabama, where a federal circuit court has rejected the state’s attempt to force the early release of U.S. Census Bureau redistricting data; 
  • Louisiana, where state lawmakers have adopted a resolution laying out redistricting criteria; and 
  • Michigan, where the state supreme court is considering extending redistricting deadlines. 

Colorado: Colorado redistricting commissions release preliminary congressional, state legislative maps

On June 23, staff of the Colorado Independent Congressional Redistricting Commission released preliminary congressional district maps, making Colorado the first state in the current redistricting cycle to produce a draft congressional plan. As a result of reapportionment, Colorado is gaining one U.S. House district, increasing from seven representatives to eight. Colorado is one of six states that gained U.S. House districts from reapportionment.

On June 29, 2021, staff of the Colorado Independent Redistricting Commission released preliminary maps for the Colorado House of Representatives and the Colorado Senate.

The commission will now conduct at least three public hearings on the proposed maps in each of the state’s current congressional districts, all of which must also be broadcast online.

After public hearings are concluded, the commission can vote on the preliminary maps or ask commission staff to make revisions. Eight of the commission’s 12 members (including at least two unaffiliated members) must approve the maps. The Colorado Supreme Court must also sign off on the maps.

Alabama: Federal court rejects Alabama’s attempt to force early release of Census Bureau redistricting data 

On June 29, a three-judge panel of the U.S. District Court for the Middle District of Alabama rejected Alabama’s attempt to force the U.S. Census Bureau to release redistricting data before Aug. 16, when the Bureau has said it will release the data to the states.

Federal law requires that the Bureau deliver redistricting data to the states by April 1 of the year following a census. However, due to delays in conducting the 2020 census and processing the data, the Bureau announced in early 2021 that it would miss this deadline. This prompted the state of Alabama to file suit on March 11. In his complaint, Alabama Solicitor General Edmund G. LaCour, Jr. said, “[t]he Bureau has no authority to grant itself this extension and deprive Alabama of information to which it is entitled.” He asked that the court block application of the differential privacy method and order the U.S. Census Bureau to deliver data to the states by March 31. A three-judge panel – including Judges Kevin Newsom, Emily Marks, and R. Austin Huffaker, all Donald Trump (R) appointees – heard the case.

The court unanimously rejected Alabama’s request: “The court cannot force the Bureau to do the impossible – that is, comply with an already-lapsed deadline. … Furthermore, the Bureau has made quite clear that it will be able to deliver the redistricting data to the State by August 16, 2021. Again, Plaintiffs have acknowledged that date suffices for them to be able to complete redistricting without injury. We see no prejudice to Plaintiffs in denying a writ of mandamus requiring the Bureau to issue the data any earlier.”

In his complaint, LaCour also alleged the U.S. Census Bureau “intends to use a statistical method called differential privacy to intentionally skew the population tabulations given to States to use for redistricting,” which would deny the state “accurate information about where Alabamians actually live.” The court also dismissed this challenge.

Louisiana: State lawmakers adopt resolution laying out criteria for redistricting plans 

On June 10, the Speaker of the Louisiana House of Representatives and the President of the Louisiana Senate signed HCR90, a concurrent resolution outlining the “minimally acceptable criteria for consideration of redistricting plans.” The resolution prohibits district-to-district population deviations exceeding 5% of the ideal district population for state legislative district plans. The resolution also requires that lawmakers use census data for redistricting purposes (not American Community Survey data, which some states have used or are considering using).

In Louisiana, Republicans control both chambers of the state legislature. Governor John Bel Edwards is a Democrat. The state legislature is responsible for both congressional and state legislative redistricting. District maps are subject to gubernatorial veto. In the event that the legislature is unable to approve state legislative district boundaries, the state supreme court must draw the lines. There is no such practice that applies to congressional districts.

Michigan: State supreme court considers extending redistricting deadlines 

On June 21, the Michigan Supreme Court heard oral arguments over the Michigan Independent Citizens Redistricting Commission’s request to extend the state’s constitutional deadline for adopting new redistricting plans.

Under the Michigan Constitution, the commission must adopt new redistricting plans by Nov. 1. It must also publish plans for public comment by Sept. 17. However, because of the delayed delivery of detailed redistricting data by the U.S. Census Bureau, the commission says it will “not be able to comply with the constitutionally imposed timeline.” Instead, the commission is asking that the state supreme court issue an order directing it to propose plans within 72 days of the receipt of redistricting data and to approve plans within 45 days thereafter.

The state supreme court asked the Office of the Attorney General to assemble two separate teams to make arguments, one team supporting the commission’s request and another opposing. The court heard oral arguments on June 21. Deputy Solicitor General Ann Sherman, speaking in support of the proposed deadline extensions, said, “[t]he very maps themselves could be challenged if they are drawn after the November 1 deadline.” Assistant Attorney General Kyla Barranco, speaking in opposition, said, “[t]here isn’t harm in telling the commission at this point, ‘Try your best with the data that you might be able to use and come September 17, maybe we’ll have a different case.'”

The court did not indicate when it would issue a decision.


Legislation update: Redistricting, electoral systems, and primary systems bills 

Redistricting legislation: So far this year, we’ve tracked at least 186 redistricting-related bills up for consideration in state legislatures. 

Redistricting legislation in the United States, 2021 

Current as of July 6, 2021

Electoral systems legislation: So far this year, we’ve tracked at least 143 bills dealing with electoral systems that are up for consideration in state legislatures. 

Electoral systems legislation in the United States, 2021 

Current as of July 6, 2021

Primary systems legislation: So far this year, we’ve tracked at least 20 bills dealing with primary systems that are up for consideration in state legislatures. 

Primary systems legislation in the United States, 2021 

Current as of July 6, 2021



Union Station: Ruling on Oklahoma Bar Association membership and dues challenge

Tenth Circuit rules on Oklahoma Bar Association membership and dues challenge  

On June 29, a three-judge panel of the U.S. Court of Appeals for the Tenth Circuit ruled on a challenge to the constitutionality of mandatory bar membership and dues, affirming in part and reversing in part the district court’s decision. A majority of states have mandatory bar associations. 

Parties to the suit

The plaintiff is Mark Schell, an Oklahoma attorney. The Goldwater Institute, which describes itself as a “free-market public policy research and litigation organization,” is representing Schell, along with Jones Day and Charles S. Rogers. The defendants are the justices of the Oklahoma Supreme Court and the Oklahoma Bar Association’s board of governors and executive director. Attorneys from Wilmer Cutler Pickering Hale and Dorr LLP, Whitten Burrage, Phillips Murrah P.C., and Maye Law Firm represent the defendants.        

What’s at issue, and how the lower court ruled

Schell’s lawsuit, which was originally filed in March 2019, claimed that the Oklahoma Bar Association’s (OBA) compulsory membership and mandatory dues violated attorneys’ First and Fourteenth Amendment rights. Schell asked the court to “declare Oklahoma’s bar membership requirement unconstitutional and order Defendants to stop forcing attorneys to subsidize the OBA’s speech without their affirmative consent, or, alternatively, to order Defendants to adopt procedures to protect attorneys from being forced to subsidize OBA speech and activities that are not germane to improving the quality of legal services and regulating the legal profession.”

On Sept. 18, 2019, Judge Joe Heaton of the U.S. District Court for the Western District of Oklahoma dismissed two of the plaintiff’s claims. Heaton, a George W. Bush (R) appointee, wrote:   

In light of the Supreme Court’s decisions in [Lathrop v. Donohue (1961)] and [Keller v. State Bar of Calif. (1990)], plaintiff’s claims directed to compelled membership in the OBA and to the collection and use of mandatory bar dues to fund activities germane to regulating the legal profession and improving legal services fail. To the extent that plaintiff contends the recent case of [Janus v. AFSCME (2018)] requires a different result, the court is unpersuaded. Janus involved the payment of agency fees by non-members of a public employee union. While there are some parallels between Janus and the circumstances here, there are also differences. There is also no suggestion in Janus that either Lathrop or Keller were overruled or otherwise called into question. In such circumstances, the court is obliged to follow the cases which most directly control, and therefore declines to speculate as to whether the Supreme Court might reach some different result if it were to revisit either Lathrop or Keller

In March 2020, the district court dismissed a third claim as moot and terminated the case. Schell appealed to the U.S. Court of Appeals for the Tenth Circuit. 

How the Tenth Circuit ruled

On June 29, a three-judge panel of the U.S. Court of Appeals for the Tenth Circuit unanimously affirmed the district court’s ruling that mandatory bar dues were not unconstitutional and reversed and remanded the district court’s ruling on mandatory bar membership, saying that the lower court “erred by relying upon Lathrop and Keller to dismiss Mr. Schell’s freedom of association claim.”

Judge Carolyn McHugh, a Barack Obama (D) appointee, wrote

Neither Lathrop nor Keller addressed a broad freedom of association challenge to mandatory bar membership where at least some of a state bar’s actions might not be germane to regulating the legal profession and improving the quality of legal services in the state. … Thus, the district court was incorrect to conclude Lathrop and Keller necessarily foreclosed Mr. Schell’s Count I claim. …

We affirm the district court’s dismissal of Count II of Mr. Schell’s Amended Complaint but reverse the district court’s dismissal of Mr. Schell’s Count I freedom of association claim. On remand, the district court shall permit Mr. Schell an opportunity to conduct discovery on that claim relative to the two potentially nongermane Oklahoma Bar Journal articles published within the statute-of-limitations period.

Judge Harris Hartz, appointed by W. Bush, and Senior Judge David Ebel, appointed by President Ronald Reagan (R), joined McHugh’s opinion.

The case name and number are Schell v. Oklahoma Supreme Court Justices, et al. (20-6044).  

About the Tenth Circuit  

The U.S. Court of Appeals for the Tenth Circuit hears appeals from the district courts within its jurisdiction, which includes Colorado, Kansas, New Mexico, Oklahoma, Utah, and Wyoming. The chief judge of the Tenth Circuit is Timothy Tymkovich, a W. Bush appointee. Of the court’s 10 active judges, W. Bush appointed three, Obama appointed five, and Donald Trump (R) appointed two. The court has two vacancies.  

What we’re reading

The big picture

Number of relevant bills by state

We are currently tracking 96 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. 

  • Delaware HB237: This bill would grant select law enforcement officers the right of organization and representation.
    • Democratic sponsorship.
    • Senate passed June 30. 
  • Illinois HB2521: This bill would allow electronic signatures on petitions submitted for selecting an exclusive bargaining representative. It would allow certification elections to be conducted electronically. It would also prohibit an employer from promising or taking action against an employee for participating in a strike.
    • Democratic sponsorship.
    • Sent to Gov. J.B. Pritzker (D) on June 28. 
  • Massachusetts H2038: This bill would amend the laws governing public-sector worker strikes.
    • Bipartisan sponsorship. 
    • Joint Labor and Workforce Development Committee hearing July 13.
  • Massachusetts H2060: This bill would establish that the personal contact information of public-sector workers cannot be made public. It would allow such information to be disclosed to labor unions.
    • Democratic sponsorship.
    • Joint Labor and Workforce Development Committee hearing July 13.
  • Massachusetts H2061: This bill would establish that the personal contact information of public-sector workers cannot be made public. It would allow such information to be disclosed to labor unions. 
    • Democratic sponsorship.
    • Joint Labor and Workforce Development Committee hearing July 13.



Redistricting review: Federal court rejects Alabama’s attempt to force early release of Census Bureau redistricting data

In this week’s Redistricting Review, we cover news out of Alabama and Colorado.

Alabama: On June 29, a three-judge panel of the U.S. District Court for the Middle District of Alabama rejected an attempt by Alabama state officials to force the U.S. Census Bureau to release redistricting data in advance of August 16, the date by which the Bureau has said it will release the data to the states.

Federal law requires that the Bureau deliver redistricting data to the states by April 1 of the year following a census. However, due to delays in conducting the 2020 census and processing the data, the Bureau announced in early 2021 that it would miss this deadline. The state of Alabama sued the Census Bureau on March 11. In his complaint, Alabama Solicitor General Edmund G. LaCour, Jr., said, “The Bureau has no authority to grant itself this extension and deprive Alabama of information to which it is entitled.” LaCour also alleged that the U.S. Census Bureau “intends to use a statistical method called differential privacy to intentionally skew the population tabulations given to States to use for redistricting,” thereby “denying Alabama accurate information about where Alabamians actually live.”

LaCour asked the court to issue an order barring application of the differential privacy method and directing the U.S. Census Bureau to deliver data to the states by March 31. A three-judge panel of Judges Kevin Newsom, Emily Marks, and R. Austin Huffaker (all Donald Trump (R) appointees) heard the case.

The court unanimously rejected Alabama’s request: “The court cannot force the Bureau to do the impossible – that is, comply with an already-lapsed deadline. … Furthermore, the Bureau has made quite clear that it will be able to deliver the redistricting data to the State by August 16, 2021. Again, Plaintiffs have acknowledged that date suffices for them to be able to complete redistricting without injury. We see no prejudice to Plaintiffs in denying a writ of mandamus requiring the Bureau to issue the data any earlier.”

Colorado: On June 29, staff of the Colorado Independent Legislative Redistricting Commission released preliminary district maps for the Colorado House of Representatives and the Colorado State Senate. The commission will now conduct at least three public hearings on the proposed maps in each of the state’s current congressional districts. This makes for a total of at least 21 public hearings, all of which must also be broadcast online.

After public hearings are concluded, the commission can take a vote on the preliminary map or ask commission staff to make revisions. In order to enact a map, eight of the commission’s 12 members (including at least two unaffiliated members) must approve of it. The Colorado Supreme Court must also sign off on the map.

The staff of the Colorado Independent Congressional Redistricting Commission released preliminary congressional district maps on June 23.

Additional reading:

Redistricting in Alabama after the 2020 census

Redistricting in Colorado after the 2020 census



North Carolina General Assembly enacts bill postponing 2021 municipal elections to 2022

The delayed release of 2020 block-level data by the U.S. Census Bureau has led the state of North Carolina to delay municipal elections currently scheduled for 2021. 

A bill postponing this year’s municipal elections in North Carolina to 2022 became law on June 28. It affects elections in at least 35 municipalities, including Charlotte, Durham, Greensboro, and Raleigh. 

The bill, SB722, applies to any municipality holding elections in 2021 for officers representing a subdivision within the municipality, such as a city council ward. In other words, this change does not affect mayoral elections. SB722 allows municipalities holding elections for at-large offices to proceed as scheduled in 2021.

Once the U.S. Census Bureau releases raw 2020 block-level data in mid-August, the municipalities will make any needed changes to their electoral districts. In previous census cycles, the bureau delivered block-level data in the spring. 

Current officeholders in affected municipalities whose terms were set to expire in 2021 will remain in office until after the elections in 2022. 

The bill (SB722) became law without Gov. Roy Cooper’s (D) signature. Cooper said, “While delays to census data caused by the pandemic necessitate changes to local elections, decisions about local elections like these should involve more open discussion and public input, and therefore, these changes will become law without my signature.” 

The North Carolina House of Representatives unanimously approved SB722 on June 9. The North Carolina Senate approved the bill 33-14 on June 14. All votes opposed came from Democrats. Republicans control the chamber 28-22.

New Election Dates

Elections will be rescheduled based on election methods.

For municipalities using either the partisan primary and election method (for example, Charlotte) or the nonpartisan primary and election method (for example, Fayetteville), the primary will take place on March 8, 2022.

The general election will take place on April 26, 2022, unless a primary for the U.S. House or Senate advances to a runoff. In that case, the general election for these municipalities will take place on May 17, 2022.

For municipalities using the nonpartisan plurality method (e.g., Greenville), the general election will take place on March 8, 2022.  

Filing Deadlines

For municipalities that revise their district maps on or before Nov. 17, the candidate filing period for the 2022 elections will open on Dec. 6 and close on Dec. 17. 

For municipalities that revise their district maps between Nov. 18 and Dec. 17, the candidate filing period will open on Jan. 3, 2022, and close on Jan. 7, 2022.  

Municipalities that wish to proceed with at-large elections as scheduled in 2021 must notify their county election boards within five days of the opening of the candidate filing period.   

At least one other state, Illinois, has postponed statewide 2022 primaries by three months in response to the delay.

Stay tuned for more updates as we follow these changes closely throughout the redistricting cycle.