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Jerrick Adams

Jerrick Adams is a staff writer at Ballotpedia and can be reached at jerrick.adams@ballotpedia.org

Washington legislature approves Janus response bill

The Washington State Legislature sent legislation to the governor’s desk that would amend state labor union law.
 
On April 18, the Washington House of Representatives approved an amended version of HB1575, which the Washington State Senate adopted on April 12. This bill would declare that public employers and public-sector unions are not liable for claims involving agency fees paid to unions prior to Janus. It would repeal statutes requiring employees to join unions or pay dues as a condition of employment. It would also amend dues deduction authorization laws, allowing authorizations to be initiated via electronic, voice, or written communications. A written request to the union would be required to discontinue dues deductions.
 
The House voted 56-38, and the Senate voted 25-21. The votes in both chambers split largely along party lines, with most Democrats voting in favor of the bill and most Republicans voting against it. The bill now goes to Governor Jay Inslee (D).
 
Sen. Rebecca Saldana (D) said the following in support of the bill during floor debate: “It is a bill that aligns our current statutes with the Janus decision and clearly defines the relationship between the union and the employee.” The Washington State Labor Council (AFL-CIO) also supported the bill, making the following statement via its news service, The Stand: “The Washington State Senate on Friday approved landmark collective bargaining legislation that brings state laws into compliance with last year’s Janus decision by the U.S. Supreme Court and provides clarity and consistency for public employee union membership in Washington state.”
 
During floor debate, Sen. Curtis King (R) criticized the bill with respect to its position on Janus: “The Janus ruling was not an anti-union decision, it was a ruling about rights, it was a ruling about freedom. It said the individual can decide what they want to do. You cannot be forced to join a union to get a public job. It’s about freedom. That’s all it was about.” Maxford Nelsen, the Freedom Foundation’s director of labor policy, said the following in a press release: “Union-backed lawmakers in Olympia are establishing quite a track record of passing illegal and unconstitutional laws to benefit their political allies at the expense of public employees’ civil liberties.”
 
On June 27, 2018, the U.S. Supreme Court ruled in Janus v. AFSCME that public sector unions cannot require non-member employees to pay fees covering the costs of non-political union activities. This overturned precedent established in the 1977 case Abood v. Detroit Board of Education.
 


In first quarter of 2019, legislatures act on donor disclosure policy

A little over three months into 2019, state legislatures nationwide have introduced 73 bills regarding donor disclosure policy in the states.
 
As of April 12, 34 states had seen such legislation introduced. Of these 73 bills, 34 were sponsored by Democrats and 21 by Republicans; the remainder were sponsored by bipartisan groups or committees. Of these 73 bills, 11 had been enacted, three had passed upper chambers, five had passed lower chambers, two had passed both chambers without having yet been signed into law, and three had died. The remainder were either in committee or awaiting a committee assignment.
 
Under federal law, nonprofits are generally only required to disclose to the public information about donors who contribute to fund campaign expenditures. State laws, however, may require more disclosure. For example, California and New York require registered nonprofits to disclose the donor data they report to the Internal Revenue Service that is not publicly released by the federal government. Other states, such as Montana and Washington, require nonprofits to publicly disclose their general supporters for engaging in speech about policy issues. In general, advocates for expanded donor disclosure provisions argue that such policies minimize the potential for fraud and establish public accountability. Meanwhile, opponents of such measures contend that disclosing to the public information about donors violates privacy rights and can inhibit charitable activity.
 


SCOTUS hears arguments in two partisan gerrymandering cases

On March 26, the Supreme Court of the United States heard oral arguments in two partisan gerrymandering cases, Rucho v. Common Cause and Lamone v. Benisek. During the course of arguments, the justices appeared divided over the issues central to both cases: are partisan gerrymandering claims justiciable under federal law, and should federal courts intervene to settle disputes over alleged partisan gerrymandering?
 
Associate Justice Neil Gorsuch, appointed to the court by Pres. Donald Trump (R), asked Emmet Bondurant, counsel for Common Cause, the following: “What do we do as well about the — the fact that about 20 states, as I understand it, from — from your friend on the other side, have dealt with this problem through citizen initiatives as a remedy to deal with this, including, I think, five of them just this last election and a bunch more on the ballot in the coming election. Why should we wade into this — when that alternative exists?”
 
Associate Justice Elena Kagan, a Barack Obama (D) appointee, disputed Gorsuch’s claim: “I mean, going down that road would suggest that Justice Gorsuch’s attempt to sort of say this is not so bad because the people can fix it is not so true because you’re suggesting that the people really maybe can’t fix it, you were wrong about the people being able to fix it, and if the people could fix it, while it’s not the constitutionally prescribed way because it’s never been done before, so Justice Gorsuch’s attempts to save what’s so dramatically wrong here, which is the Court leaving this all to professional politicians who have an interest in districting according to their own partisan interests, seems to fail.”
 
Associate Justice Brett Kavanaugh, a Trump appointee, echoed Gorsuch’s inquiry: “But what about, to pick up on something Justice Gorsuch said earlier, that there is a fair amount of activity going on in the states on redistricting and attention in Congress and in state supreme courts? In other words, have we reached the moment, even though it would be a — have we really reached the moment, even though it would be a big lift for this Court to get involved, where the other actors can’t do it?”
 
Associate Justice Sonia Sotomayor, an Obama appointee, responded as follows to the point made by Paul Clement, counsel for Rucho, that partisan gerrymandering claims are not justiciable under federal law: “Once we decided the one person, one vote concept, we’ve been pretty much in all of our jurisprudence saying that certain acts by the legislature are unconstitutional, including race discrimination and others. It can’t be that simply because the Constitution says that a particular act is in the hands of one — one branch of government, that that deprives the courts of reviewing whether that action is constitutional or not.
 
The high court is expected to rule on both cases prior to the conclusion of the current term in June of this year.
 
The phrase partisan gerrymandering refers to the practice of drawing electoral district maps with the intention of favoring one political party over another. In contrast with racial gerrymandering, on which issue the Supreme Court of the United States has issued rulings in the past affirming that such practices violate federal law, the high court has not yet a ruling establishing clear precedent on the question of partisan gerrymandering. Although the court heard two partisan gerrymandering cases last term, it ruled on procedural and standing grounds in each, without addressing the question of justiciability.
 
For more information about these cases, see our articles:
 


Pennsylvania Rep. Brian Ellis resigns after allegations of sexual misconduct

On March 18, 2019, Rep. Brian Ellis (R) resigned his seat in the Pennsylvania House of Representatives amid allegations of sexual misconduct. Ellis, who represented Pennsylvania’s 11th state House district, said the following in his resignation letter: “It is with immense gratitude to the sacrifices made by my family, the support of my constituents, and the friendship of my colleagues that I have concluded that it is in my best interests of my family, the residents of the 11th House district, and my own health that I resign from the General Assembly.”
 
Ellis was accused of sexually assaulting a state capitol employee in October 2015. Ellis allegedly offered to help an acquaintance after she fell down in a bar by taking her to his home, where he allegedly sexually assaulted her. The woman, who chose to remain anonymous, said she did not consent to any sexual acts. The Philadelphia Inquirer first published an account of the allegations on January 24, 2019. On January 25, 2019, House Republican leaders issued a statement calling for Ellis’ resignation.
 
The leaders said Ellis should focus on his family and addressing the allegations, which were under criminal investigation by the Dauphin County district attorney. They also removed Ellis from his committee leadership positions and committee assignments, pending the outcome of the investigation. Gov. Tom Wolf (D) also called for Ellis to step down.
 
Vacancies in the Pennsylvania General Assembly are filled by special election. The presiding officer of the House must call for the election. The state constitution does not establish a timetable for special legislative elections.
 
Additional reading:


Legislatures take early action on public-sector union policy

Two months into 2019, and state legislatures nationwide have taken early action on public-sector union policy in the states, responding either directly or indirectly to the Supreme Court’s decision last summer in Janus v. AFSCME. In Janus, the high court ruled that public-sector unions cannot require non-member employees to pay agency fees to cover the costs of non-political union activities.
 
As of March 1, legislatures in 29 states had introduced 82 bills relevant to public-sector union policy. Of these 82 bills, 45 were sponsored by Democrats and 29 by Republicans; the remainder were sponsored by bipartisan groups or committees. Of these 82 bills, two had passed lower chambers and three had died. The remainder were either in committee or awaiting a committee assignment.
 
More about Janus: Generally, members of an employee union pay fees to that union. These fees support the union’s activities, which can include collective bargaining and contract administration, as well as political activities, such as lobbying. Some public-sector employees do not wish to join a union, and some are opposed to unions’ political activities. In 1977, the Supreme Court ruled in Abood v. Detroit Board of Education that employees cannot be required to give financial support to a union’s political activities. However, the court found that it was not a violation of employees’ rights under the First Amendment to the U.S. Constitution to require them to pay fees to support union activities from which they benefit, such as collective bargaining. It is this ruling that was overturned by Janus, which held that such fees are not constitutional.


Federal appeals court rejects exclusive representation challenge in Washington

On February 26, 2019, a three-judge panel of the United States Court of Appeals for the Ninth Circuit found that a Washington state policy granting exclusive bargaining rights to a union did not violate workers’ First Amendment rights.
 
In 2006, the state authorized child care providers working under a state-subsidized program to select an exclusive representative for the purposes of collective bargaining. The workers chose Service Employees International Union Local 925. Workers were not required to join the union, but SEIU Local 925 was granted the exclusive right to represent this class of workers. The plaintiff in the case, child care provider Katherine Miller, alleged that this practice, in light of Janus, violated her First Amendment rights because it authorized SEIU Local 925 to speak and negotiate on her behalf without her express consent.
 
The appeals court panel unanimously rejected Miller’s argument, citing the Supreme Court’s 1984 decision in Minnesota State Board for Community Colleges v. Knight. In Knight, the high court dismissed a suit from several Minnesota community college instructors that made an argument similar to Miller’s. The high court held “the state has in no way restrained appellees’ freedom to speak on any education-related issue or their freedom to associate or not to associate with whom they please, including the exclusive representative.”
 
The appeals court panel was comprised of Judges Susan P. Graber, M. Margaret McKeown, and Morgan Christen. President Bill Clinton (D) appointed both Graber and McKeown to the court in 1998. President Barack Obama (D) appointed Christen to the court in 2011.


How do primaries in your state work?

The first statewide primary of 2019 is approaching – here’s a rundown of five facts about primary systems.
 
1. An open primary is any primary election in which a voter either does not have to formally affiliate with a political party in order to vote in its primary or can declare his or her affiliation with a party at the polls on the day of the primary even if the voter was previously affiliated with a different party.
 
In 22 states, at least one party conducts open primaries. Is your state one of them? Click the link to find out.
 
2. In 39 states, a candidate needs to win only a plurality (as opposed to a majority) of all votes cast in order to be declared the winner of a primary. Is your state one of them? Click the link to find out.
 
3. Generally, political parties use primary elections either to narrow the field of candidates for a given elective office or to determine their nominees in advance of a general election. In seven states, however, political parties can nominate candidates for some offices for the general election directly, without conducting a primary election. Is your state one of them? Click the link to find out.
 
4. A closed primary is a type of primary election in which a voter must affiliate formally with a political party in advance of the election date in order to participate in that party’s primary. In 14 states, at least one political party conducts closed primaries. Is your state one of them? Click the link to find out.
 
5. In eight states, a candidate must win a majority of all votes cast (i.e., 50 percent plus at least one) in order to be declared the winner of a primary election. Is your state one of them? Click the link to find out.


Federal judge strikes down Mississippi state senate district as violation of Voting Rights Act

On February 13, 2019, Judge Carlton W. Reeves, of the United States District Court for the Southern District of Mississippi, issued an order striking down the state legislative map for Mississippi State Senate District 22.
 
Judge Reeves ruled that the district constituted a violation of the Voting Rights Act by denying racial minorities “an equal opportunity to participate in the political processes and to elect candidates of their choice.” In the two-page order, Reeves advised the state legislature of its right to the first opportunity to draft new maps for District 22 and any adjoining districts that might be affected as part of the redistricting process. Reeves also suggested that the legislature might extend the March 1 qualification deadline for candidates in District 22 and any other affected districts. Reeves, appointed in 2010 by Pres. Barack Obama (2013), noted that a full opinion in the case, Thomas v. Bryant, would be forthcoming.
 
In 2015, Eugene Clarke (R) won re-election to District 22 with 53.8 percent of the vote.
 
The Mississippi State Senate is one of seven legislative chambers nationwide that will conduct elections in 2019. All 52 Senate seats will be up for election. The primary is scheduled to take place on August 6, 2019. The general election will take place on November 5, 2019.
 


Wonder why you’ve been receiving more robo-calls? A 2018 ruling by a federal appellate court has something to do with it

According to a January 29, 2019, report by The Washington Post, Americans received approximately 26.3 billion automated phone calls in 2018, a 46 percent increase over the total number of automated calls received in 2017. The increase can be attributed in part to a federal appellate court ruling that expanded the types of equipment that can be used legally to make automated calls.
 
On March 16, 2018, a three-judge panel of the United States Court of Appeals for the District of Columbia Circuit issued its ruling in ACA International v. Federal Communications Commission, striking down a rule promulgated by the Federal Communications Commission (FCC) regarding the types of equipment that can be used for making automated phone calls. The Telephone Consumer Protection Act (TCPA), enacted in 1991, granted the FCC the authority to interpret and enforce the law’s restrictions against the use of certain kinds of automated dialing equipment. In 2015, the FCC issued an order that, among other things, classified devices capable of being transformed into automated dialing systems via the installation of apps as devices subject to the restrictions of the TCPA. The court found that this classification metric was overly broad.
 
Judge Srikanth Srinivasan, appointed to the court by Barack Obama (D), wrote the following in the court’s opinion: “The Commission’s understanding would appear to subject ordinary calls from any conventional smartphone to the Act’s coverage, an unreasonably expansive interpretation of the statute.” Srinivasan was joined by Judges Cornelia T. L. Pillard and Harry Edwards, who were appointed to the court by Obama and Jimmy Carter (D), respectively.


New Mexico Supreme Court upholds constitutionality of closed primaries

On February 5, 2019, the New Mexico Supreme Court dismissed a challenge to the legality of closed primaries in the state. The initial suit was brought by former attorney general Paul Bardacke (D), who argued that New Mexico’s closed primary process serves private organizations (in this case, political parties) in violation of a state law prohibiting the use of public money to benefit private organizations. The state supreme court did not address this argument in its order, which summarily dismissed the challenge.
 
A closed primary is a type of primary election in which a voter must affiliate formally with a political party in advance of the election date in order to participate in that party’s primary. In 14 states, including New Mexico, at least one political party conducts closed primaries for congressional and state-level offices. In 11 of these states, including New Mexico, all political parties conduct closed primaries. In the 2016 presidential election cycle, political parties in 27 states utilized closed primaries and/or caucuses as part of the presidential nominating process.
 
In New Mexico, state supreme court justices are appointed by the governor, who selects from a list of candidates recommended by a commission. After being appointed, the justice must stand in the next partisan election in order to retain his or her seat.


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