Author

Samuel Postell

Samuel Postell is a staff writer at Ballotpedia. Contact us at editor@ballotpedia.org.

District court affirms president’s authority to increase federal contractor minimum wage

Judge John J. Tuchi of the U.S. District Court for the District of Arizona on January 6, 2023, rejected a challenge from a coalition of states and held that President Joe Biden (D) did not exceed his authority when he issued an executive order directing the U.S. Department of Labor (DOL) to promulgate regulations increasing in the minimum wage for federal contractors.

President Biden issued Executive Order (EO) 14026 in April 2021 requiring the DOL to issue regulations increasing the minimum wage for federal contractors to $15 an hour. Five states (Arizona, Indiana, Idaho, Nebraska, and South Carolina) in February 2022 challenged the executive order in the U.S. District Court for the District of Arizona, arguing in part that the executive order violated the clear notice requirement of the U.S. Constitution’s spending clause because states were not fully aware of the new contracting conditions under the order; that the order exceeded the president’s authority under the Federal Property and Administrative Services Act of 1949 (FPASA); and that the FPASA unconstitutionally delegates congressional authority to the president in violation of the nondelegation doctrine.

Judge Tuchi ruled in part that the executive order, in his view, did not violate the U.S. Constitution’s spending clause because the clause is not applicable to federal contracts; that the order did not exceed the president’s statutory authority under the FPASA because the order speaks to the FPASA’s federal contracting goals; and that the FPASA does not violate the nondelegation doctrine because it provides the president with an intelligible principle to guide executive action.

“As this Court and others have recognized, the FPASA’s grant of presidential authority is broad, but it is not unqualified,” Judge Tuchi wrote in the opinion. “The Court finds there is a sufficiently close nexus between EO 14026 and the Final Rule and the FPASA’s goals of economy and efficiency in federal contracting. Here, the president has rationally determined that increasing the minimum wages of contractors’ employees will lead to improvements in their productivity and the quality of their work, and thereby benefit the government’s contracting operation.”

The states can appeal the case to the United States Court of Appeals for the Ninth Circuit, but no appeal had been filed as of January 12, 2023.

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Governors ask Biden administration to lift COVID-19 public health emergency

Utah Governor Spencer Cox (R) and 24 governors from other states, on December 19, 2022, signed a letter asking President Joe Biden (D) to end the COVID-19 federal public health emergency (PHE) in April 2023. 

The U.S. Department of Health and Human Services (HHS) declared the COVID-19 federal PHE on January 27, 2020. The PHE must be renewed every 90 days to stay in effect. It was most recently renewed on October 13, 2022, and will expire on January 11, 2023, if it is not renewed again. States, as of January 4, 2023, had not received notice that HHS plans to lift the PHE, indicating that the agency plans to renew the order, according to Georgetown University Health Policy Institute.

Governor Cox’s letter asks President Biden to allow the federal PHE to expire in April 2023 after its January 2023 renewal to “provide states with much needed certainty well in advance of its expiration.” Cox argued that the federal PHE was negatively affecting the states by requiring them to cover expanded populations under Medicaid: “The PHE is negatively affecting states, primarily by artificially growing our population covered under Medicaid (both traditional and expanded populations), regardless of whether individuals continue to be eligible under the program.” During the federal PHE states cannot remove people from Medicare benefits who have changed status and are now ineligible.

President Biden had not responded to Gov. Cox’s letter as of January 3, 2023.



Direct Legislative Appointment method produces the lowest average partisanship confidence score for state supreme court justices according to the Ballotpedia Courts: State Partisanship study. 

Direct legislative appointment yields the lowest average partisan confidence score for state supreme court justices of any method, according to the Ballotpedia Courts: State Partisanship study. The Michigan-Ohio method produced the highest average partisan confidence score of 11 for all justices, while the direct legislative appointment method produced an average partisan confidence score of 5 for its justices.  

In addition to recording the lowest average partisan confidence score for justices, the direct legislative appointment method produced a court balance score of 3.7. The court balance score recorded for direct legislative appointment was the fifth-highest across the eight selection methods. We arrived at a court balance score by finding the average of partisan confidence scores while accounting for the differences between Democrats and Republicans, whereas the average score, also referred to as the pure partisanship score, is the average of all scores without regard to the differences between Democrats and Republicans. 

Although the direct legislative appointment method produced a low average partisanship score for its justices, this could be due to the fact that it is used in fewer states than other methods. Only South Carolina and Virginia use direct legislative appointment.

South Carolina has four justices with mild Republican affiliation and one justice with indeterminate partisan affiliation. The court balance score for South Carolina is 4.2, mildly Republican. The pure partisanship score for South Carolina’s justices is 4.6, compared to the national average of 7.

Virginia has one justice with strong Republican affiliation, three justices with mild Republican affiliation, one justice with mild Democratic affiliation, and two justices with indeterminate partisan affiliation. The court balance score for Virginia is 3.3, mildly Republican. The pure partisanship score for Virginia’s justices is 5.3, compared to the national average of 7.

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Idaho Supreme Court justice announces retirement

Idaho Supreme Court Justice Roger Burdick is retiring on June 30, 2021. He was appointed to this position in 2003 by Republican Gov. Dirk Kempthorne and retained by voters in 2004, 2010 and 2016. His current term would have expired in January 2023. Burdick’s replacement will be Republican Governor Brad Little’s first appointment to the supreme court. 

Under Idaho law, the Idaho Judicial Council selects supreme court justices to fill vacancies. When a seat on the court becomes vacant, the commission submits two to four names to the governor to determine the replacement. The justice selected by the governor will complete Justice Burdick’s term which ends in January 2023. A nonpartisan election to elect a justice for the next six-year term will be held in May 2022.

Following Burdick’s retirement, the Idaho Supreme Court will include the following members:

G. Richard Bevan – appointed by Gov. Butch Otter (R) in 2017.

Gregory W. Moeller – appointed by Gov. Butch Otter (R) in 2018.

Robyn Brody – elected in 2016 to an open seat on the court.

John R. Stegner – appointed by Gov. Butch Otter (R) in 2018.

Before Burdick’s retirement, a Republican governor appointed four justices to fill vacancies on the court and one justice was elected. The state of Idaho holds nonpartisan elections for seats on the supreme court. 

In 2020, the Idaho Supreme Court ruled unanimously in 91.5% of the cases they heard. Justices dissented in 12 of the 140 cases heard by the court and ruled unanimously in the other 128.

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Oklahoma Supreme Court rules that Gov. Stitt overstepped his authority in negotiating two gaming compacts without legislative approval

On January 26, 2021, the Oklahoma Supreme Court issued an opinion in Treat v. Stitt, a case regarding the governor’s power to renegotiate state gaming compacts. The lawsuit was filed on behalf of Speaker of the House Charles McCall (R) and Senate President Pro Tempore Greg Treat (R) who argued that Governor Kevin Stitt (R) overstepped his constitutional authority when he renegotiated the terms for the gaming contracts with the Kialegee Tribal Town and the United Keetoowah Band of Cherokee Indians. The gaming contracts at issue were enacted under the State-Tribal Gaming Act, which voters approved through State Question 712 in 2004. 

Justice James Winchester wrote the opinion for the court. Chief Justice Richard Darby joined Justice Winchester, as did substitute Justice John Reif. Justice Yvonne Kauger wrote a separate concurring opinion and was joined by Justices Douglas Combs, Noma Gurich. Justice Dustin Rowe concurred in the result only. Justice M. John Kane IV wrote a dissenting opinion. Justices James Edmondson and Tom Colbert recused themselves. 

Writing for the majority, Justice Winchester said “The Legislature has not authorized the Governor to bind the state with regard to tribal compacts… the compact executed by the Governor contravened state law. The Governor’s powers are limited by the Constitution. The Governor may exercise only the specific power granted. The Governor’s attempt to exceed this authority results in the actions being rendered wholly ineffectual and invalid.”

In his dissenting opinion, Justice Kane said he would dismiss the case for lack of indispensable parties, The Comanche Nation and Otoe-Missouria Tribes, who also have gaming contracts with the state. 

Gov. Stitt said that he will not appeal the court’s decision. On January 27, 2021, he issued a statement that said he plans to work with a joint legislative committee to review the gambling compacts. 

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Gov. Sununu (R) to nominate Attorney General Gordon MacDonald to New Hampshire Supreme Court

On January 6, 2021, Gov. Chris Sununu (R) announced that he will renominate Attorney General Gordan MacDonald (R) to the New Hampshire State Supreme Court. 

In New Hampshire, the governor makes nominations to the state supreme court and those nominees are then subject to the approval of the Executive Council. In order for the nominee to become a justice on the court, a majority of the members of the council must vote to approve them. 

Sununu appointed MacDonald to the State Supreme Court in 2019, but the Executive Council rejected MacDonald’s nomination. Councilman Andru Volinksy (D) stated, “Mr. MacDonald has worked for and supported highly partisan politicians with shockingly extreme views.” After MacDonald was rejected, Sununu left the seat vacant throughout 2020. Sununu said, “If someone of Gordon MacDonald’s character and background is going to be dragged through the mud like this, why would I dare do it to anybody else?”

The first time Sununu nominated MacDonald, there were three Democrats and two Republicans on the Executive Council. In November 2020, every seat on the Executive Council was up for election. The balance on the Executive Council is now one Democrat and four Republicans. 

In our Ballotpedia Courts: State Partisanship study, we analyzed the partisan data on each state supreme court in the country. In our study, we found that two justices on the court have Republican affiliations, one justice on the court has Democratic affiliations, and one justice on the court has an indeterminate party affiliation. If the Executive Council approves MacDonald, a majority of the justices on the court will have Republican party affiliations.

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New Hampshire Executive Council election, 2020

Ballotpedia Courts: State Partisanship



2020’s state supreme court elections resulted in changes on two of country’s least homogenous courts

The partisan makeup of two of the country’s most politically divided state supreme courts changed as a result of the 2020 elections, according to a Ballotpedia ranking of states by supreme court partisanship.

As part of the Ballotpedia Courts: State Partisanship study, Ballotpedia assigned each state supreme court justice a partisan confidence score based on factors including the justice’s history of political contributions and personal political party membership. Each individual justice’s confidence score was considered when assessing how divided a particular state’s supreme court was.

The primary factor in determining a court’s overall political homogeneity is whether the court is split or has a majority of one party. We also considered the difference between the low score and the high score of justices on the court, the ratio of justices with strong partisan Confidence Scores to justices with indeterminate Confidence Scores, and the ratio of justices with Democratic and Republican Confidence Scores on the court. 

The states with the least homogeneous supreme courts—in other words, with the most partisan differences among justices—were Michigan, Illinois, New Jersey, Tennessee, and Vermont. 

Illinois had the least homogeneous court with a Democratic majority; four justices had Democratic confidence scores and three had Republican confidence scores.

Michigan, Tennessee, and West Virginia had the least homogeneous courts with Republican majorities. Michigan had a 4-3 majority of justices with Republican confidence scores, while Tennessee had a 3-2 majority. West Virginia a 4-1 majority, although two of the Republican-aligned justices also had links to the Democratic Party.

The 2020 election changed the composition of both the Illinois and Michigan state supreme courts.

In Michigan, Justice Stephen Markman (R) had to retire due to the state’s mandatory retirement age and Chief Justice Bridget Mary McCormack (D) ran for reelection. Justice Markman was one of the four justices in the majority who recorded Republican Confidence Scores according to our study. Elizabeth Welch, who was one of the state Democratic Party’s two nominees, was the second-highest vote-getter and will take Markman’s seat. Justice McCormack was the highest vote-getter and will retain her seat on the court. As a result of this election, the Michigan Supreme Court went from a 4-3 majority of Republican-leaning justices to a 4-3 majority of Democratic-leaning justices.

In Illinois, Justice Thomas Kilbride (D) stood for retention election, where voters choose “yes” or “no” to retain a justice on the court. In Illinois, a justice must win at least 60% of the vote in order to win retention. Justice Kilbride received 56% of the vote and will vacate the seat as a result. In the interim, the Illinois Supreme Court will choose a justice to fill the vacancy of Kilbride’s seat for 2021. There will be an election to choose a justice to permanently fill Kilbride’s seat in 2022.

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Ballotpedia publishes special study on state supreme court partisanship

Ballotpedia recently published a study on state supreme courts entitled “Ballotpedia Courts: State Partisanship”. Among the findings, the study showed that there has been an increase in partisanship on the state courts over the past ten years and that there is a correlation between the partisanship of justices selected for state supreme courts and the results of the presidential election. In other words, the national popularity of a political party seems to correspond with the partisanship of justices selected to the state courts, and the partisan trend in state supreme court selection seems to be predictive of the presidential election.

State supreme court selection predicts presidential election:

Seven states hold partisan elections for state supreme court justices, but almost all justices on the state courts have some degree of partisan involvement. Our study tracks various data points indicating each justice’s partisan political involvement leading up to his or her selection to the state’s court of last resort.

Our data shows that in the first four years of George W. Bush’s (R) presidency, the average partisan Confidence Score (our level of confidence in a justice’s partisan affiliation) of justices across the United States was 1.2, a Republican-leaning average. In the last four years of Bush’s presidency, the average score was a -0.6, a Democratic-leaning average.

Following that period, Barack Obama (D) was elected president. In the last four years of Obama’s presidency, the average court balance score was 1.8, a Republican average. Following that period Donald Trump (R) was elected president.

Although there was an increase in justices with Democratic scores following Barack Obama’s election, it was followed by an even greater increase in Republican scores leading up to Donald Trump’s election and throughout his presidential term.

Confidence in partisanship of justices has increased in recent years

As of June 2020, there were 185 justices on the state supreme courts who ascended to the bench between the years of 2000 and 2015. Of those justices, 88 (47.6%) recorded Republican Confidence Scores, 70 (37.8%) recorded Democratic Confidence Scores, and 27 (14.6%) recorded Indeterminate Confidence Scores. On the other hand, there were 128 justices on the state supreme courts who ascended to the bench between the years of 2016 and 2019. Of those justices, 78 (61%) recorded Republican Confidence Scores, 33 (25.8%) recorded Democratic Confidence Scores, and 17 (13.2%) recorded Indeterminate Confidence Scores.

Although there was an increase in the appointment of Democratic-affiliated justices during Obama’s presidency, that was short-lived and was followed by an even greater number of Republican-affiliated state supreme court justices ascending to the bench. In 2015, the average partisanship score of state supreme court justice’s selected was -0.6, a Democratic average. In 2016, the average partisanship score of state supreme court justices selected was 4.1, a Republican average, the highest of all years for which we have data. In 2017 the average partisanship score was 3.7, a Republican average, and the second highest of all years for which we have data.

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Ballotpedia publishes state court partisanship study

Each state has at least one supreme court, or court of last resort. Oklahoma and Texas each have two such courts, one for civil appeals and one for criminal appeals. Ballotpedia Courts: State Partisanship—a culmination of eight months of research and compilation of raw data—supplies Partisan Confidence Scores for 341 active state supreme court justices on all 52 courts of last resort. 

We gathered a variety of data on each justice and, based on that data, placed each justice into one of five categories indicating our confidence in their affiliations with either the Democratic or Republican Parties.

These categories are Strong Democratic ConfidenceMild Democratic ConfidenceIndeterminate ConfidenceMild Republican Confidence, and Strong Republican Confidence

The study does not specifically describe the partisan affiliation of judges. We call our scores Confidence Scores because we believe they provide insight into the degree of confidence we have in each justice’s political leanings because of their previous partisan activity.

Here are some of the key findings from the study:

  1. Of the 341 justices studied, we assigned Republican scores to 178 (52.2%), Democratic scores to 114 (33.4%), and Indeterminate scores to 49 (14.4%). 
  2. Twenty-seven states (54%) have a majority of justices with Republican scores. Fifteen state supreme courts (30%) have a majority of justices with Democratic scores. Eight state supreme courts (16%) do not have a majority of justices with Democratic scores or Republican scores. 
  3. 39.9% of the population live in a state which has a majority of justices with Democratic scores on the court. 51.1% of citizens live in a state which has a majority of justices with Republican scores on the court. 9% of citizens live in a state with a split court, or a court with a majority of justices with indeterminate partisan leanings. 

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Illinois Supreme Court decides case allowing suspended police officers to seek backpay

On October 22, 2020, the Illinois Supreme Court decided Goral v. Dart, a case on police officers’ right to due process to claim backpay. 

The case concerned a decision regarding the legitimacy of Cook County Sheriff Tom Dart’s Merit Board. The Illinois Supreme Court upheld an appellate court’s decision which determined that officers suspended without pay could sue the sheriff’s office over the legitimacy of the merit board’s determination that those officers would be suspended without pay. The decision allows the officers to resume their case in circuit court where they may seek repayment for lost wages during their suspensions.

Justice P. Scott Neville (D) wrote the majority opinion in the case and was joined by Justices Thomas Kilbride (D) and Lloyd Karmeier (R) as well as Chief Justice Anne M. Burke (D). Justice Michael J. Burke (R) dissented, with opinion, joined by Justices Rita Garman (R) and Mary Jane Theis (D).

Attorneys Chris Cooper and Cass Casper, attorneys for the suspended police officers, said “Today Tom Dart is being told in crystal clear language that the officers are entitled to due process and entitled to their backpay.”

Sheriff’s office spokesman Matthew Walberg said, “Today’s Illinois Supreme Court decision is a catastrophic blow to law enforcement accountability… The decision rewards employees who engaged in criminal, unethical and despicable conduct at the expense of Illinois taxpayers.”

The election on November 3, 2020, will decide three seats on the Illinois Supreme Court:

  • District 1: Justices Neville is up for election. He was appointed by the Illinois Supreme Court to fill a vacancy on the court. Illinois is the only state in the country that allows the state supreme court to choose who fills a vacant seat on the court. 
  • District 3: Justice Kilbride faces a yes-no retention election to keep his seat on the state supreme court. 
  • District 5: Justice Karmeier’s seat is also up for election. Karmeier announced his retirement on December 6, 2019. 

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