Legislative activity in the wake of Janus

On June 27, 2018, the U.S. Supreme Court ruled in Janus v. AFSCME that public-sector unions cannot require non-members to pay agency fees to cover the costs of non-political union activities. Lawmakers nationwide have since taken up legislation in response to Janus. The summary below is a detailed account of legislative activity in the year since the Janus decision came down.
2019 post-Janus activity: As of June 14, 31 state legislatures have considered 101 bills relevant to public-sector union policy.
Breakdown by state: Oregon has had 10 relevant bills introduced this year—more than any other state (none of these have yet been enacted, although two have cleared both chambers of the state legislature). Pennsylvania and Washington have followed close behind with nine and eight bills, respectively.
Partisan split: Of the 101 bills introduced nationwide, Democrats have sponsored 51. Republicans have sponsored 38. Bipartisan groups or committees have sponsored the rest.
2018 post-Janus activity: Between June 27, 2018, and Dec. 31, 2018, the Massachusetts, Michigan, Missouri, and Pennsylvania legislatures took up a total of seven bills relevant to public-sector union policy.
Breakdown by state: Pennsylvania had four relevant bills introduced post-Janus in 2018. One relevant bill was introduced in each of the three remaining states during that period.
Partisan split: Republicans introduced four of the seven bills. Bipartisan groups or committees sponsored the other three.
Bills enacted since Janus: Three bills have been enacted since Janus. These are detailed below. Another five bills introduced this year have cleared state legislatures but have yet to be enacted.
– Delaware SB8: This bill establishes compensation as a mandatory subject of collective bargaining efforts.
– Nevada SB135: This bill provides for collective bargaining rights for state employees.
– Washington HB1575: This bill declared that public employers and public-sector unions are not liable for claims involving agency fees paid to unions prior to Janus. It repealed statutes requiring employees to join unions or pay dues as a condition of employment. It also amended dues deduction authorization laws, allowing authorizations to be initiated via electronic, voice, or written communication and requiring authorizations to be discontinued by a written request made to the union.
To mark the one-year anniversary of Janus, we will be examining its effects in three special issues of Union Station and a webinar.
June 14 Union Station: Legislative activity in the wake of Janus
June 21 Union Station: Litigation activity post-Janus
June 26 webinar: Join us for a 30-minute discussion of Janus and its effects on legislation and union membership.
June 28 Union Station: Effect on union membership

Oregon joins the National Popular Vote Interstate Compact, bringing total jurisdictions to 16

On June 12, 2019, Oregon Gov. Kate Brown (D) signed legislation to join the state in the National Popular Vote Interstate Compact (NPVIC). Oregon is the 16th jurisdiction to join NPVIC, as well as the fourth state in 2019. The NPVIC is an interstate compact to award member states’ presidential electors to the winner of the national popular vote. The NPVIC would go into effect if states representing at least 270 electoral college votes adopt the legislation. With Oregon joining the NPVIC, the compact’s members now account for 196 electoral votes.
In the Oregon State Senate, the legislation was passed 17-12. Fifteen Democrats and two Republicans supported the bill, while three Democrats and nine Republicans opposed the bill. In the Oregon House, the legislation was passed 37-22. House Democrats supported the bill, and House Republicans opposed the bill. Oregon is a Democratic trifecta, meaning Democrats control both legislative chambers and the governor’s office.
Gov. Brown’s signature comes 13 days after neighboring Nevada Gov. Steve Sisolak (D) vetoed a bill to join his state in the NPVIC. Gov. Sisolak, upon vetoing the bill, stated, “Once effective, the National Popular Vote Interstate Compact could diminish the role of smaller states like Nevada in national electoral contests and force Nevada’s electors to side with whoever wins the nationwide popular vote, rather than the candidate Nevadans choose.” Regarding Oregon, Gov. Brown said, “I think it’s really important to be a part of the national conversation regarding the presidential election. I think it will encourage candidates to spend more time in states like ours, speaking directly to our voters.”
Maine could also join the NPVIC in 2019. The Maine House rejected legislation on May 30, 2019, but on June 12, the House voted to reconsider the bill. The Maine Senate had passed the bill on May 14.
Of the 16 jurisdictions to join the NPVIC, 14 of them were Democratic trifectas at the time of enactment. Two—Hawaii and New York—were divided governments. In Hawaii, the Democratic-controlled legislature was able to override Gov. Linda Lingle’s (R) veto in 2008. New York joined NPVIC in 2014, when Democrats controlled the governor’s office and Assembly. Democrats did not control the Senate due to a coalition between the Independent Democratic Conference and Senate Republicans, but Democratic Party members held a three-seat numerical majority. Of the current Democratic trifectas, Maine and Nevada are the only two that have not joined the NPVIC as of June 2019.
Additional reading:

SCOTUS to release 24 opinions by end of term

The U.S. Supreme Court began hearing cases for the 2018 term on October 1, 2018, and wrapped up oral arguments on April 24, 2019. As of June 10, the court has issued opinions in 45 of the 69 cases this term, meaning the court has 24 opinions to deliver before the end of the term.
At this time in 2018, the U.S. Supreme Court had issued opinions in 42 of 63 cases. The court had not issued opinions in 21 cases.
Outstanding opinions by month of oral argument:
2018-2019 term
(current term)
October: One opinion
November: Two opinions
December: One opinion
January: Two opinions
February: Three opinions
March: Seven opinions
April:  Eight opinions
2017-2018 term
(last term)
October: One opinion
November: One opinion
December: None
January: Two opinions
February: Six opinions
March: Two opinions
April: Nine opinions
Outstanding opinions by circuit:
2018-2019 term
(current term)
2nd Circuit: Four opinions
3rd Circuit: One opinion
4th Circuit: Three opinions
5th Circuit: One opinion
6th Circuit: One opinion
8th Circuit: One opinion
9th Circuit: One opinion
10th Circuit: Two opinions
11th Circuit: Two opinions
Federal Circuit: Two opinions
State/other: Six opinions
2017-2018 term
(last term)
1st Circuit: One opinion
2nd Circuit: Two opinions
6th Circuit: One opinion
7th Circuit: Two opinions
8th Circuit: One opinion
9th Circuit: Two opinions
10th Circuit: One opinion
11th Circuit: Two opinions
Federal Circuit: One opinion
D.C. Circuit: One opinion
State/other: Six opinions
Original jurisdiction cases: One opinion
Additional reading:

Five Senate and 44 House races in 2018 were decided by less than 5 percent

The average margin of victory in the 2018 elections was the smallest it had been in even-year congressional races since 2012.
Margin of victory—or MOV—is the difference between the share of votes cast for the winning candidate and the share cast for the losing one.
Since it is June, the sixth month of the year, here are six more quick facts from our research:
  • Sixty-nine percent of 2018’s congressional races were decided by a margin of more than 15 percentage points.
  • In 2018’s 33 regularly-scheduled U.S. Senate elections, the average MOV was 16.8%. This was the smallest average since 2012 when that year’s Senate races averaged a 20% MOV.
  • Republican candidates who won Senate races had an average MOV of 14.3%, compared to an MOV of 16.8% in races won by Democratic candidates. Seventeen Senate races (more than half) were decided by a margin of victory greater than 15%.
  • The closest Senate race was in Florida, where then-Gov. Rick Scott (R) defeated incumbent Bill Nelson (D) by a margin of 0.12%—10,003 votes out of 8.2 million cast. The largest MOV was in Hawaii, where incumbent Mazie Hirono (D) won by 42.3%.
  • In 434 U.S. House elections, the average margin of victory was 30.2%. This was the smallest average since 2012 when the average MOV was 31.8%. Republican candidates who won did so by an average margin of 22.8%. The average margin in House races won by Democrats was 36.6%.
  • The closest House race was in Georgia’s 7th Congressional District where incumbent Rob Woodall (R) defeated Carolyn Bourdeaux (D) by 433 votes—a margin of 0.15%.
Additional reading:

Pennsylvania U.S. House district and Kentucky governor on the ballot May 21

On May 21, voters will decide on the next representative from Pennsylvania’s 12th Congressional District and party nominees for Kentucky’s November gubernatorial election. Ballotpedia will have live results from all three races available once polls close.
In Pennsylvania, Marc Friedenberg (D), a professor, and state Rep. Fred Keller (R) are running in a special election for the seat vacated by Tom Marino (R) in January 2019. Marino beat Friedenberg by 32 points in November 2018. Donald Trump (R) won the district by 36 points in 2016. Polls are open from 7 a.m. to 8 p.m. local time. The special election is the first of three special elections to the U.S. House scheduled for 2019.
In Kentucky, Gov. Matt Bevin (R) faces state Rep. Robert Goforth (R), Ike Lawrence, and William E. Woods in the Republican primary to choose a gubernatorial nominee for the November general election. Bevin has the lead in both polling and fundraising and has also received the backing of Vice President Mike Pence (R).
Kentucky House Minority Leader Rocky Adkins, state Attorney General Andy Beshear, former state Auditor Adam Edelen, and retired engineer Geoff Young are seeking the Democratic nomination for governor. Adkins, Beshear, and Edelen have raised a collective $7 million and spent $5 million. Beshear has led in polling, and Edelen has led in fundraising. Polls in Kentucky are open from 6 a.m. to 6 p.m. local time.

Trump has fourth-most federal judges, most appeals court judges confirmed at this stage of last 13 presidents

President Donald Trump made 104 Article III federal judicial appointments through May 15, 2019. How does that figure compare to other modern presidents at this stage of their terms?
We looked at the numbers from the last 13 presidents, dating back to Harry Truman.
Article III judges are lifetime appointments to the U.S. Supreme Court, a U.S. court of appeals, a U.S. district court, or the Court of International Trade. The breakdown of Article III judges is as follows:
  • Supreme Court of the United States: 9 justices
  • United States court of appeals: 179 judgeships
  • United States district court: 677 judgeships
  • United States Court of International Trade: 9 judgeships
The chart below shows the number of Article III judges confirmed by the U.S. Senate under each of the last 13 presidents on or before May 15 of their third years in office. The confirmations are broken up by court type.
Here are five takeaways from the above graph and other elements of the data:
  • Trump has made the fourth most Article III appointments through this point in his term. The three presidents who had more at this point were Bill Clinton (141), George W. Bush (124), and John F. Kennedy (116).
  • Trump has made the most appeals court appointments through this point, 39, which is 22 percent of the 179 appeals court judgeships. The next highest number of appointments at this point in a presidency was Richard Nixon (25) and George W. Bush (21).
  • Kennedy had 56 judges confirmed in the first year of his term, most among the group. Dwight Eisenhower had nine, the fewest. Trump’s 19 appointments in the first year of his presidency were eighth-most.
  • Trump has made the eighth-most district court appointments, 63, which is nine percent of the 677 district court judgeships. Clinton had made 118 such appointments, and George W. Bush had 100.
  • Trump inherited 108 Article III judicial vacancies when he was inaugurated. This represented 12.4 percent of the 870 Article III judicial posts. Among the last six presidents, only Clinton inherited more vacancies—111 of 842 positions, or 13.2 percent.
For more charts and to explore the raw data, visit our in-depth analysis at the link below.

Three states have joined the National Popular Vote Interstate Compact so far in 2019

As of May 1, 2019, an additional three states have joined the National Popular Vote Interstate Compact (NPVIC) in 2019. Colorado, Delaware, and New Mexico—all Democratic trifectas—joined the compact earlier this year.
The National Popular Vote Interstate Compact (NPVIC) is an interstate compact to award member state’s presidential electors to the winner of the national popular vote. The NPVIC would go into effect if states representing at least 270 electoral college votes adopt the legislation. This compact does not abolish the electoral college system; rather, the compacts awards all of the electoral votes from the member states to the candidate who receives the most votes nationwide. To date, 14 states and D.C., representing 189 electoral votes, have joined the compact.
Most states use a winner-take-all system for awarding electoral votes—a candidate who receives 51 percent of the popular vote in a state would receive 100 percent of that state’s electoral votes. In 2016, Donald Trump won the presidential election with 304 electoral votes but Hillary Clinton received the most popular votes nationwide. The 2016 election was not the only instance in which the winner of the electoral college did not receive the most popular votes; it happened in five of the 58 presidential elections in our nation’s history.
Supporters and opponents of the NPVIC disagree about whether it is constitutional under the U.S. Constitution’s Compact Clause, which states, “No State shall, without the Consent of Congress… enter into any Agreement or Compact with another State…” Jessica Heller, a legal writer at FairVote, argued that the U.S. Supreme Court has interpreted the Compact Clause to allow agreements between states that do not “infringe upon federal supremacy.” William G. Ross, a law professor at Samford University, disagrees, arguing, “it would jettison the federalist structure of the Electoral College… thwart[ing] the intention of the Framers of the original Constitution…”
In 2019, additional states, including Nevada and Oregon, could vote to join the NPVIC. Like 12 of the 14 states that have voted to join in the past, both states are Democratic trifectas.

Trifecta control in five states at stake in the 2019 elections

Gubernatorial and state legislative elections are taking place in five states in 2019. These elections could affect existing Republican trifectas in Kentucky and Mississippi and the Democratic trifecta in New Jersey. New trifectas could potentially form in Louisiana and Virginia.
A trifecta, which describes when one party holds the governorship, a majority in the state senate, and a majority in the state house, helps that party advance its agenda while requiring less support from members of the minority party. Nationally, Republicans hold 22 trifectas to Democrats’ 14.
Based on the number of seats which would need to be flipped to change control of each legislative chamber and on gubernatorial race ratings from political forecasters, Ballotpedia has rated the vulnerability of existing trifectas and the chances of new trifectas forming.
We rate Mississippi’s Republican trifecta as moderately vulnerable and Kentucky’s Republican trifecta as somewhat vulnerable. New Jersey’s Democratic trifecta is not vulnerable.
In Louisiana, there is a slight possibility of a Republican trifecta forming and a low possibility of a Democratic trifecta forming. In Virginia, there is a moderate possibility of a Democratic trifecta forming and no possibility of a Republican trifecta forming.
In the 2018 elections, four of 26 existing Republican trifectas were broken. The trifectas in Michigan, New Hampshire, and Wisconsin were among the five that we rated highly vulnerable that year, while the trifecta in Kansas was among four we rated moderately vulnerable.
Six new Democratic trifectas were created, including in all four of the states we rated as having a moderate possibility of gaining a Democratic trifecta (Colorado, Illinois, New Mexico, and New York). Democrats also gained trifectas in Maine and Nevada, which were among the six states we rated as toss-ups.

Are 2019’s state primaries on track to be more or less competitive than in recent election cycles?

In 2019, Ballotpedia is publishing primary election competitiveness data following each state’s major-party candidate filing deadline. Five states will hold regular statewide elections: Kentucky, Mississippi, and Louisiana will hold elections for state executive offices, and Mississippi, Louisiana, New Jersey, and Virginia will hold elections for state legislative seats. Filing deadlines have passed in every state except Louisiana, whose filing deadline is August 8. Ballotpedia will update the data set after that final candidate filing deadline has passed.
A contested primary is defined as one in which voters have a choice on the ballot. As of the publication of this report, 20.7% of possible state primary races are contested in 2019. State executive primaries are contested in 61.1% of the races, and state legislative primaries are contested in 18.6% of the races. Comparatively, 16.1% of primaries were contested in 2017, and 28.9% were contested in 2015.
Approximately 25.6% of incumbents face contested primaries in 2019. Twenty-five percent of state executive incumbents face challengers across 18 seats, and 25.6% of state legislative incumbents face challengers across 394 seats. The number of state executive incumbents facing opponents is lower than in both 2017 (66.7% across seven seats) and 2015 (68.8% across 25 seats). By contrast, the number of state legislative incumbents facing opponents is greater than in 2017 (16.0% across 220 seats) but lower than in 2015 (26.9% across 398 seats).

In presidential elections since 1900, one state voted for the winning candidate more than 90 percent of the time

In presidential elections between 1900 and 2016, one state voted for the winning candidate more than 90 percent of the time. And one state did so less than 50 percent of the time.
Ohio’s electoral votes have gone to the winning president 93 percent of the time—in 28 out of 30 general elections—since 1900. Ohio has voted in every election cycle for the winning presidential candidate since 1964. It is followed by New Mexico, which voted for the winning president 89 percent of the time, in 24 out of 27 elections (New Mexico became a state in 1912).
Mississippi’s electoral vote went to the winning president 47 percent of the time, in 14 of 30 elections. It is joined at the bottom of the list by Washington, D.C., which supported the winning president 43 percent of the time. D.C. began participating in presidential elections in 1964 and has voted Democratic in every presidential election. The candidate who won Washington, D.C., won the presidency in six of 14 elections since 1964.
Below are the five most and least accurate states (and D.C.) in presidential elections from 1900 to 2016.
Most accurate:
  • Ohio, 93.33% (28 out of 30 elections)
  • New Mexico, 88.89% (24 out of 27 elections)
  • Nevada, 86.67% (26 out of 30 elections)
  • Missouri, 86.67% (26 out of 30 elections)
  • Illinois, 83.33% (25 out of 30 elections)
Least accurate:
  • Washington, D.C., 42.86% (6 out of 14 elections)
  • Mississippi, 46.67% (14 out of 30 elections)
  • Alabama, 51.72% (15 out of 29 elections)
  • Georgia, 53.33% (16 out of 30 elections)
  • South Carolina, 53.33% (16 out of 30 elections)
Ballotpedia used data from the U.S. National Archives and Records Administration to show which states’ electoral votes went to the victorious presidential candidates between 1900 and 2016.