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Documenting America’s Path to Recovery: October 19, 2020

Welcome to Documenting America’s Path to Recovery, where we track the status of reopening in all 50 states. Today we look at agricultural relief in Minnesota and Maryland, gathering limits in Wisconsin, mask mandates, and more. Want to know what happened Friday? Click here.

Since our last edition

What is open in each state? For a continually updated article on reopening status in all 50 states, click here.

  • Hawaii (Democratic trifecta): Gov. David Ige (D) released a list of eight organizations that will be able to administer the coronavirus tests required for interisland travelers to avoid the 14-day mandatory self-quarantine.
  • Iowa (Republican trifecta): On Friday, Oct. 16, Gov. Kim Reynolds (R) signed an order extending the statewide emergency through Nov. 15. The emergency order includes the state’s COVID-19 restrictions, including a new provision requiring bars and restaurants to keep customers seated and to maintain 6 feet of distance between groups.
  • Maryland (divided government): On Monday, Oct. 19, Gov. Larry Hogan (R) announced the creation of the Maryland Farmer COVID-19 Relief Program, which will offer $10 million in relief to Maryland farmers.
  • Massachusetts (divided government): The statewide moratorium on evictions expired Saturday, Oct. 17, after Gov. Charlie Baker (R) said he would not extend it.
  • Michigan (divided government): On Friday, Oct. 16, Gov. Gretchen Whitmer (D) signed Senate Bill 1108, which makes permanent an executive order that allows public bodies to conduct public meetings remotely during the pandemic.
  • Minnesota (divided government): On Monday, Oct. 19, Gov. Tim Walz (D) announced $7.7 million in federal CARES Act support to farmers, agricultural producers, and meat processors.
  • New York (Democratic trifecta): Gov. Andrew Cuomo (D) announced movie theaters can reopen at 25% capacity everywhere except New York City if a county’s positivity rate is below 2% on a 14-day rolling average, starting Oct. 23. Cuomo also said ski resorts can reopen starting Nov. 6.
  • Wisconsin (divided government): On Monday, Oct. 19, Judge James Babler allowed Gov. Tony Evers’ Oct. 6 order limiting public gatherings in bars and restaurants to go into effect, overturning a court ruling last week that blocked enforcement of the order while the case was being litigated. The Tavern League of Wisconsin, which filed the lawsuit along with two bars, said it would not appeal the decision.

Daily feature: Face coverings

We last looked at face coverings in the Oct. 12 edition of the newsletter. Since then, no states have adopted a new statewide public mask mandate or let a face-covering requirement expire.

Additional activity

In this section, we feature examples of other federal, state, and local government activity, private industry responses, and lawsuits related to the pandemic.

  • On Oct. 16, three Oregon state lawmakers and a local businessman filed suit in Multnomah County Circuit Court against Gov. Kate Brown (D), alleging the governor’s stay-at-home orders and business closures exceeded her authority. The plaintiffs – state Reps. Werner Reschke (R) and Mike Nearman (R), state Sen. Dennis Linthicum (R), and Washington County businessman Neil Ruggles – argue that Brown “has arrogated unto herself legislative powers of sweeping scope to reorder social life and destroy the livelihoods of residents across the state, which powers are reserved exclusively for the Legislative Assembly by the Oregon Constitution.” The plaintiffs are seeking an injunction blocking Brown’s state-of-emergency declaration and any rules emanating from it, as well as a judgment settling their state constitutional claims. Charles Boyle, a representative for Brown, said, “The governor is focused on implementing measures to keep Oregonians healthy and safe, based on the advice of doctors and health experts and what the data shows will limit the spread of Covid-19.”


Final debate topics include COVID-19, race, national security

Ballotpedia's Daily Presidential News Briefing
October 19, 2020: The Committee on Presidential Debates released the six topics for the final presidential debate selected by moderator Kristen Welker. Preserve America launched a $10 million anti-Biden campaign in seven battleground states.


Inside Elections updated its race ratings on October 16, 2020:

  • Iowa and Ohio moved from Tilt Republican to Toss Up.
  • Wisconsin moved from Tilt Democratic to Lean Democratic
  • New Hampshire moved from Lean Democratic to Likely Democratic.
  • Kansas and Missouri moved from Likely Republican to Lean Republican.

Notable Quotes of the Day

“What you see here is a pretty clear divide between the Great Lake and Sun Belt states. Biden has advantages of 7 points to 8 points in the Great Lakes, while his leads are 3 to 4 points in the Sun Belt. Nebraska’s Second District is really not part of either region, though it is part of the Midwest (where the Great Lakes is mostly situated) and lacks the racial diversity of the Sun Belt states.

The key in these poll numbers is that Biden doesn’t actually need Arizona, Florida or North Carolina to win. Just by winning in Michigan, Wisconsin, Pennsylvania and holding the Clinton states, Biden gets to 278 electoral votes.

Obviously, that map doesn’t leave Biden a lot of room for error, but it is good enough.”

– Harry Enten, CNN

“Flagging ‘clear warning signs’ for Biden, one prominent strategist circulated a memo among Democrats earlier this month citing increasing registration of white, non-college educated voters — Trump’s base demographic — in Pennsylvania, Wisconsin and Michigan. There is no precedent for Trump overcoming such a large polling deficit this close to the election, the strategist wrote. ‘And yet …’”

– David SidersPolitico

Election Updates

  • On Friday, the Committee on Presidential Debates released the six topics for the final presidential debate selected by moderator Kristen Welker: fighting COVID-19, American families, race in America, climate change, national security, and leadership.
  • Joe Biden is airing ads during five NFL games this week for teams in several battleground states. AdAge estimated one 30-second spot during an NFL game cost $419,000 in 2019.
  • Kamala Harris returns to the campaign trail on Monday after two campaign aides tested positive for COVID-19. She is visiting Orlando and Jacksonville in Florida.
  • Donald Trump is holding two rallies in Arizona on Monday: one in Prescott, the other in Tucson.
  • The pro-Trump Preserve America launched a $10 million ad campaign in seven battleground states that criticizes Biden on his economic policy. The ads will air in Florida, Pennsylvania, Wisconsin, Arizona, North Carolina, Georgia, and Iowa.
  • 60 Minutes will feature interviews with Biden, Trump, and their respective running mates on Sunday.
  • Syracuse.com profiled Howie Hawkins’ upbringing, career, and presidential campaign.
  • Jo Jorgensen is concluding her bus tour in Knoxville, Tennessee, on Monday.

Flashback: October 19, 2016

The third and final presidential debate between Hillary Clinton and Donald Trump was held in Las Vegas.blank

Click here to learn more.



Documenting America’s Path to Recovery: October 16, 2020

Welcome to Documenting America’s Path to Recovery, where we track the status of reopening in all 50 states. Today we look at new restrictions in Nebraska and New Mexico, the extension of the state of emergency in Vermont, travel restrictions, and more. Want to know what happened yesterday? Click here.

The next 72 hours

What is changing in the next 72 hours?

  • Massachusetts (divided government): The statewide moratorium on evictions is scheduled to expire Saturday, Oct. 17. Gov. Charlie Baker (R) said he would not extend it.

Since our last edition

What is open in each state? For a continually updated article on reopening status in all 50 states, click here.

  • Georgia (Republican trifecta): On Thursday, Oct. 15, Gov. Brian Kemp (R) extended the executive order outlining the state’s coronavirus restrictions through Oct. 31. The order includes requirements for businesses, including bars and restaurants, and a cap on gatherings larger than 50 people where social distancing can’t be followed.
  • Illinois (Democratic trifecta): The Illinois Department of Public Health added eight more counties to the state’s warning level classification, bringing the total number of warning-level counties to 34. The state uses the classification system to identify counties that may need additional mitigation measures.
  • Nebraska (Republican trifecta): On Friday, Oct. 16, Gov. Pete Ricketts (R) said new restrictions would take effect statewide on Oct. 21 in response to increasing coronavirus-related hospitalizations. Restrictions include a reduction in the indoor gatherings limit from 75% capacity to 50%, and a requirement that restaurants and bar patrons remain seated unless ordering, going to the bathroom, or playing a game.
  • New Mexico (Democratic trifecta): Gov. Michelle Lujan Grisham (D) added additional restrictions to the state’s public health order, effective Oct. 16. Bars and restaurants that serve alcohol have to close by 10 p.m. every evening, and gatherings are limited to a maximum of five individuals.Travelers from states with COVID-19 positivity rates exceeding 5% can no longer present a recent negative coronavirus test to avoid New Mexico’s 14-day self-quarantine requirement. Health Secretary Kathyleen Kunkel extended the state’s stay-at-home order through Nov. 13.
  • North Dakota (Republican trifecta): On Wednesday, Oct. 14, Gov. Doug Burgum (R) announced he would move 16 counties into the “high risk” category on Oct. 16 at 5:00 p.m. due to a spike in coronavirus cases. Bars, restaurants, and large venues in “high risk” areas are advised to cap capacity at 25% or 50 people in total.
  • Oregon (Democratic trifecta): Gov. Kate Brown (D) announced Lane County was added to the state’s County Watch List.
  • Vermont (divided government): On Thursday, Oct. 15, Gov. Phil Scott (R) extended the state of emergency through Nov. 15.

Daily feature: Travel restrictions

Every Friday, we take a closer look at the restrictions governors and state agencies have placed on interstate travelers, including a recap of the week’s travel-related news. To see our full coverage of travel restrictions enacted in response to the coronavirus pandemic, click here.

Overview

To date, 25 states issued at least one executive order restricting interstate travel. Of the 25 executive orders governors or state agencies issued restricting out-of-state visitors, at least 14 have been rescinded. Eleven states have active travel restrictions.

Weekly recap

  • On Oct. 15, Hawaii’s pre-travel testing program went into effect, allowing visitors to avoid a 14-day quarantine requirement if they can present a negative COVID-19 test taken within 72 hours of arrival. Travelers who test positive or whose results are pending will need to quarantine.
  • On Oct. 14, the Ohio Department of Health updated its travel advisory to include travelers from Indiana. The advisory asks visitors from states reporting positive testing rates of 15% or higher to self-quarantine for two weeks.
  • On Oct. 13, Govs. Ned Lamont (D-Conn.), Phil Murphy (D-N.J.), and Andrew Cuomo (D-N.Y.) announced that Michigan, Virginia, and Ohio had been added to the tristate quarantine list. The list includes 38 states and territories.

Additional activity

In this section, we feature examples of other federal, state, and local government activity, private industry responses, and lawsuits related to the pandemic.

  • On Oct. 15, Judge Edward Scott of Florida’s Marion County Circuit Court declined to block President Donald Trump (R) from holding a campaign rally at the Ocala International Airport on Oct. 16. Chanae Jackson, a Marion County resident whose two teenage children had been diagnosed with Covid-19, filed suit against Trump’s campaign on Oct. 14, alleging “her family cannot afford to experience Covid-19 again.” Jackson alleged “Trump’s appearance while infected – in defiance of his own experts’ guidance – will embolden hundreds of his supporters to attend unmasked and undistanced.” In his ruling, Scott ruled Jackson had failed to meet the standard for issuance of an injunction, writing that “a prospective injury must be more than a remote possibility.” Trump’s campaign did not comment on the lawsuit, and the event was expected to proceed as planned.


Ohio state government employee asks SCOTUS to consider class-action lawsuit over refunds for previously paid union fees

Ohio state government employee asks SCOTUS to consider class-action lawsuit over refunds for previously paid union fees           

On Oct. 8, attorneys for an Ohio state employee petitioned the U.S. Supreme Court to take up his class-action lawsuit, in which he is seeking refunds for the dues he and other non-member employees were required to pay to the union representing their workplace.

Who are the parties to the suit?  

The plaintiff is Nathaniel Ogle, an employee of the Ohio Department of Taxation. Attorneys from the National Right to Work Legal Defense Foundation (NRTWLDF) are representing Ogle. NRTWLDF describes itself as a nonprofit whose “mission is to eliminate coercive union power and compulsory unionism abuses through strategic litigation, public information, and education programs.” 

The defendant is the Ohio Civil Service Employee Association (OCSEA), the exclusive bargaining representative for Ohio state employees. OCSEA is an affiliate of the American Federation of State, County, and Municipal Employees. According to its website, OCSEA represents roughly 30,000 state and local government employees.  

What is at issue?

Ogle, who began working for the state in 2011 and was never a dues-paying member of OCSEA, was required to pay fees to support non-political union activities, including collective bargaining, contract administration, and grievance arbitration. This was in keeping with the U.S. Supreme Court’s 1977 ruling in Abood v. Detroit Education Association, in which the court upheld the constitutionality of these fees, which are commonly referred to as either agency or fair-share fees.  

However, on June 27, 2018, the Supreme Court issued its decision in Janus v. AFSCME, overturning the Abood precedent. The court ruled that public-sector unions cannot compel non-member employees to pay agency fees.  

On Oct. 15, 2018, Ogle filed a class-action lawsuit against OCSEA in the U.S. District Court for the Southern District of Ohio. Citing Janus, Ogle’s attorneys argued that “OCSEA’s seizure of fair-share fees from Ogle, and from other employees who did not affirmatively consent to paying such fees prior to their exaction, violated their First Amendment rights.” His attorneys said that, in light of Supreme Court decisions preceding Janus, “OCSEA should have known that its seizure of fair-share fees from unconsenting employees violated their First Amendment rights.” They asked that the court “refund with interest all fair-share fees that were unconstitutionally extracted from Ogle and his fellow class members.” 

How have the lower courts ruled?

On July 17, 2019, Judge George Smith granted the defendants’ motion to dismiss the lawsuit, finding that the union had acted in good faith according to the Abood precedent and was not liable to refund agency fees paid before Janus. Smith is a Ronald Reagan (R) appointee. 

Ogle appealed Smith’s ruling to the U.S. Court of Appeals for the Sixth Circuit. A three-judge panel unanimously affirmed Smith’s decision. The panel included Judges Jeffrey Sutton, John K. Bush, and Chad Readler. Sutton is a George W. Bush (R) appointee, and Bush and Readler are Donald Trump (R) appointees. 

What comes next?

On Oct. 14, the Supreme Court added Ogle v. Ohio Civil Service Employees Association to its schedule for consideration. A response from the defendants is due Nov. 13. 

Ogle is the fifth suit of its kind pending before the high court. The other four include Casanova v. International Association of Machinists, Janus v. AFSCME (not to be confused with the 2018 Janus decision), Danielson v. Inslee, and Mooney v. Illinois Education Association

What we’re reading

The big picture

Number of relevant bills by state

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

Number of relevant bills by current legislative status

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

Recent legislative actions

  • Vermont S0254: This bill would require public employers to provide unions with employee contact information. It would provide for the automatic deduction of union dues from members’ paychecks, and it would permit unions to meet with new employees to provide them with information regarding union membership.
    • Democratic sponsorship.
    • Governor signed into law Oct. 12.


Three individuals linked to Biden campaign travel test positive for COVID-19

Ballotpedia's Daily Presidential News Briefing
October 16, 2020: Three individuals linked to Biden campaign travel tested positive for COVID-19. Donald Trump, the Republican National Committee, and joint fundraising committees raised $248 million in September.

Notable Quote of the Day

“Wisconsin is proof that politicos have short memories. In 2004, Democratic presidential candidate John Kerry carried Wisconsin by just 0.4 percentage points — making it the closest state in the country. Four years earlier, it had been even closer — Democrat Al Gore won the Badger State by just 5,708 votes, or 0.2 points.

But Democrat Barack Obama really connected with Wisconsin voters, winning the state by 14 points in 2008 and 7 points in 2012. Going into 2016, that contributed to a sense that Wisconsin was a safe bet for Hillary Clinton — part of the mythical ‘blue wall.’ It had, after all, voted Democratic in seven consecutive presidential elections by that point.

We all know what happened next: Now-President Trump carried Wisconsin by 0.8 percentage points, reaffirming its status as a swing state. It was the third time in five presidential elections that Wisconsin was decided by less than a point.”

– Nathaniel Rakich, FiveThirtyEight​​​​​

Election Updates

  • Three people who traveled with Joe Biden and Kamala Harris on campaign flights tested positive for COVID-19. Harris suspended her travel for several days after sharing a flight with two of the individuals who had tested positive. The campaign said Biden would remain on the campaign trail since he had not been within 50 feet of the third person who tested positive. Biden said his COVID-19 test was negative on Thursday.
  • Biden participated in a town hall on ABC News in Philadelphia moderated by George Stephanopoulos on Thursday night. He said that a vaccine mandate would depend on its effectiveness and distribution. He said he wanted to eliminate tax cuts for only the top earners. He called the 1994 crime bill a mistake and advocated more community policing. Biden said his position on court packing depended on Amy Coney Barrett’s confirmation process.
  • Biden is campaigning in Michigan on Friday with stops in Southfield and Detroit.
  • Donald Trump, the Republican National Committee, and joint fundraising committees raised $248 million in September. The Biden campaign previously reported that it, along with its aligned Democratic groups, had raised $383 million in the same month.
  • Trump participated in a town hall on NBC News in Miami moderated by Savannah Guthrie on Thursday night. He denounced white supremacy and antifa. He said he would always protect people with pre-existing conditions. Trump said his reported personal debt of $421 million was tiny compared to his assets. He said his position on Supreme Court nominations in election years changed after how Brett Kavanaugh was treated during his confirmation hearing.
  • Trump is holding rallies in Florida and Georgia on Friday, campaign events in Michigan and Wisconsin on Saturday, and a rally in Carson City, Nevada, on Sunday.
  • Jo Jorgensen is campaigning in Florida on Friday and Saturday. She will also visit Tennessee on Sunday.

Flashback: October 16, 2016

The New York Times reported that Donald Trump began October 2016 with $75 million in cash on hand, while Hillary Clinton had roughly $150 million.blank

Click here to learn more.



Documenting America’s Path to Recovery: October 15, 2020

Welcome to Documenting America’s Path to Recovery, where we track the status of reopening in all 50 states. Today we look at Hawaii’s new testing program for travelers, changes in county risk designations in North Dakota, a featured lawsuit, and more. Want to know what happened yesterday? Click here.

The next 24 hours

What is changing in the next 24 hours?

  • New Mexico (Democratic trifecta): The state’s stay-at-home order is scheduled to expire at 11:59 p.m. MT on Oct. 16. We will provide an update if the order is extended in a future edition.
  • North Dakota (Republican trifecta): On Wednesday, Oct. 14, Gov. Doug Burgum (R) announced that he would move 16 counties into the “high risk” category on Oct. 16 at 5:00 p.m. due to a spike in coronavirus cases. Bars, restaurants, and large venues in “high risk” areas are advised to cap capacity at 25% or 50 people in total.

Since our last edition

What is open in each state? For a continually updated article on reopening status in all 50 states, click here.

  • Connecticut (Democratic trifecta): Gov. Ned Lamont issued an executive order allowing towns to opt out of Phase 3 and remain in the more restrictive Phase 2 of the state’s reopening plan if they have more than 15 coronavirus cases per 100,000 people over a two-week rolling average.
  • Hawaii (Democratic trifecta): Starting Oct. 15, travelers to the state can present a negative COVID-19 test upon arrival and avoid the 14-day self-quarantine requirement. The tests need to have been taken within 72 hours of when travelers arrive on the islands. Gov. David Ige (D) extended the state’s coronavirus emergency through Nov. 30.
  • Idaho (Republican trifecta): Gov. Brad Little (R) announced the state will remain in Phase Four for at least two more weeks. Idaho entered Phase Four on June 13.
  • New Hampshire (divided government): On Thursday, Oct. 15, Gov. Chris Sununu (R) announced he was banning hockey and skating events for two weeks after a rash of coronavirus cases connected to ice sports.
  • Ohio (Republican trifecta): The Department of Health updated its travel advisory on Wednesday, Oct. 14, to include travelers from Indiana. The advisory asks visitors from states reporting positive testing rates of 15% or higher to self-quarantine for two weeks.
  • Rhode Island (Democratic trifecta): Gov. Gina Raimondo (D) issued an executive order requiring businesses to close break rooms for 90 days.

Daily feature: Featured lawsuit

Once a week, we take a closer look at a noteworthy lawsuit involving governmental responses to the COVID-19 outbreak in the United States. We define a noteworthy lawsuit as one that has garnered significant media attention, involves major advocacy groups, or deals with unique legal questions. This week, we look at a lawsuit involving indoor capacity restrictions in Wisconsin.

Tavern League of Wisconsin, Inc. v. Palm

On Oct. 14, Judge John M. Yackel of Wisconsin’s Sawyer County Circuit Court temporarily blocked emergency indoor capacity restrictions issued in response to an uptick in statewide COVID-19 infections.

What was at issue?

Upon Gov. Tony Evers’ (D) direction, Wisconsin Health Secretary Andrea Palm issued Emergency Order #3, limiting indoor public gatherings to no more than 25% capacity, with certain limitations. In its complaint, the Tavern League of Wisconsin argued Executive Order #3 “purports to regulate businesses and public gatherings in a manner nearly identical to portions of Emergency Order #28,” which the Wisconsin Supreme Court struck down on May 13.

How did the court rule, and what comes next?

In his order, Yackel wrote that Evers and his administration “are immediately restrained, until further order from the Court, from enforcing Emergency Order #3.” Britt Cudaback, a representative for Evers, said: “This is a dangerous decision that leaves our state without a statewide effort to contain this virus.”

Yackel scheduled oral arguments for Oct. 19 to discuss whether the temporary injunction should be lifted or extended.



Biden, Trump participate in competing town halls rather than debate

Ballotpedia's Daily Presidential News Briefing
October 15, 2020: Joe Biden and Donald Trump are participating in competing town halls on Thursday night after the second presidential debate was canceled. The Biden campaign responded to a New York Post story on his alleged involvement in his son’s business dealings in Ukraine.


Campaign Ad Comparison
DPNB campaign ad comparison feature, 2020 ("Change" – Joe Biden)

DPNB campaign ad comparison feature, 2020 ("We Deserve to Know" – Donald Trump)

Notable Quote of the Day

“In 2016, 94% of all campaigning took place in just 12 states and two-thirds of the events took place in just six states. More than half of all states did not have one campaign event in 2016 after the national party conventions. No candidate stepped foot in any state with just 3 electoral votes, undermining the argument that the Electoral College forces candidates to run national campaigns.

The same pattern has emerged this fall. Since the conclusion of the national party conventions in August, Over 70% of all campaign events — either virtual or in person — have been held in just six states (Pennsylvania, North Carolina, Wisconsin, Florida, Michigan and Minnesota). If you want to know where the presidential election will be decided, you need look no further than where the candidates are spending their time and money.”

– Robert Alexander, director of the Institute for Civics and Public Policy at Ohio Northern University

Election Updates

  • Joe Biden is participating in a town hall in Philadelphia hosted by ABC News and moderated by George Stephanopoulos on Thursday night.
  • The Biden campaign announced on Wednesday that the campaign, in conjunction with the Democratic National Committee, raised a record-setting $383 million in September.
  • The Biden campaign responded to a New York Post story that said Hunter Biden introduced Joe Biden to an executive from a Ukraninan energy company, where Hunter Biden was a member of the board. “The never-before-revealed meeting is mentioned in a message of appreciation that Vadym Pozharskyi, an adviser to the board of Burisma, allegedly sent Hunter Biden on April 17, 2015, about a year after Hunter joined the Burisma board at a reported salary of up to $50,000 a month,” The New York Post said. The article referenced a hard drive and emails given to The New York Post by Trump attorney Rudy Giuliani.
  • Biden campaign spokesman Andrew Bates said in a statement that “we have reviewed Joe Biden’s official schedules from the time and no meeting, as alleged by the New York Post, ever took place.” Politico reported that the Biden campaign did not rule out the possibility that Biden had an informal interaction with Pozharskyi. Bates also said, “Investigations by the press, during impeachment, and even by two Republican-led Senate committees whose work was decried as ‘not legitimate’ and political by a GOP colleague have all reached the same conclusion: that Joe Biden carried out official U.S. policy toward Ukraine and engaged in no wrongdoing. Trump administration officials have attested to these facts under oath.”
  • Donald Trump began airing an ad questioning Hunter Biden’s business dealings in Ukraine on Wednesday. The narrator says, “The question is not why Hunter Biden used his name to get these gigs. It’s why Joe Biden let him do it.”
  • Trump is participating in a town hall in Miami hosted by NBC News and moderated by Savannah Guthrie.
  • Howie Hawkins called on his supporters to volunteer as official poll watchers to challenge voter suppression efforts.

Flashback: October 15, 2016

Donald Trump said he and Hillary Clinton should take a drug test before the final presidential debate.

Click here to learn more.



Documenting America’s Path to Recovery: October 14, 2020

Welcome to Documenting America’s Path to Recovery, where we track the status of reopening in all 50 states. Today we look at upcoming coronavirus restrictions in New Mexico, to-go cocktails in Ohio, a featured story from the 1918 influenza pandemic, and more. Want to know what happened yesterday? Click here.

The next 24 hours

What is changing in the next 24 hours?

  • Hawaii (Democratic trifecta): Starting Oct. 15, travelers to the state can present a negative COVID-19 test upon arrival and avoid the 14-day quarantine requirement. The tests will need to have been taken within 72 hours of when travelers arrive on the islands. Gov. David Ige (D) extended the state’s coronavirus emergency period through Nov. 30.

Since our last edition

What is open in each state? For a continually updated article on reopening status in all 50 states, click here.

  • Indiana (Republican trifecta): On Wednesday, Oct. 14, Gov. Eric Holcomb (R) announced that the state would stay in Stage 5 of reopening for another month and that the statewide mask mandate would continue.
  • New Mexico (Democratic trifecta): Gov. Michelle Lujan Grisham (D) announced she will add additional restrictions to the state’s public health order starting Oct. 16. Bars and restaurants that serve alcohol will have to close by 10 p.m. every evening, and gatherings will be limited to a maximum of five individuals. Travelers from states with COVID-19 positivity rates exceeding 5% will not be able to avoid New Mexico’s 14-day self-quarantine requirement by presenting a recent negative coronavirus test.
  • Ohio (Republican trifecta): On Wednesday, Oct. 14, Gov. Mike DeWine (R) signed a bill making permanent a provision allowing restaurants to sell to-go alcoholic beverages. The law went into effect immediately.  Restaurants were allowed to offer to-go alcoholic beverages earlier in the year on a temporary basis to help them stay afloat while the state was under a stay-at-home order.
  • Texas (Republican trifecta): On Wednesday, Oct. 14, Gov. Greg Abbott (R) announced the Texas Education Agency (TEA) and the Texas Division of Emergency Management have partnered to pilot a program for COVID-19 rapid testing in eight school systems.
  • Washington (Democratic trifecta): On Tuesday, Oct. 13, Gov. Jay Inslee (D) announced that he would ease restrictions in five counties, allowing them to advance to Phase 2 of the reopening plan.
  • Wisconsin (divided government): On Wednesday, Oct. 14, Sawyer County Judge John Yackel blocked enforcement of Gov. Tony Evers’s (D) order restricting indoor gatherings while a lawsuit filed by Wisconsin restaurants and bars is litigated. Yackel’s decision requires attorneys for Health Services Secretary Andrea Palm to appear in court on Oct. 19 to argue why the order restricting gatherings should be enforced, pending a conclusion to the lawsuit.

Daily feature: The 1918 influenza pandemic

Every Wednesday, we feature a newspaper story written during the 1918 influenza pandemic that illustrates how the country contended with a national health emergency in the midst of an election year. To see more stories from 1918, click here.

On Sept. 30, the Philadelphia Evening Bulletin reported on the debate in New Jersey over closing schools in the midst of the influenza pandemic.

The schools of Moorestown, Collingswood, and several other New Jersey towns have been closed owing to the growth and seriousness of the Spanish influenza epidemic throughout the section about Camden.

Many school children have contracted the disease, and it is feared it will be spread to nearly every family in the locality if the children are allowed to continue congregating in the school rooms daily.

Click here to read the original article, courtesy of the University of Michigan Center for the History of Medicine and Michigan Publishing’s Influenza Encyclopedia.

Additional activity

In this section, we feature examples of other federal, state, and local government activity, private industry responses, and lawsuits related to the pandemic.

  • On Oct. 1, Judge Susan Paradise Baxter, of the U.S. District Court for the Western District of Pennsylvania, dismissed a claim by four student-athletes who were refused entry to a golf tournament administered by the Pennsylvania Interscholastic Athletic Association (PIAA). The plaintiffs alleged that eight days before the tournament, the PIAA “arbitrarily and capriciously reduced the number of qualifiers.” The students argued that “the reduction of numbers has no quantifiable relationship on the spread of Covid-19 as it relates to outdoor activities such as golf.” They asked the court to order the PIAA to allow them to participate in the tournament. Baxter denied that request, writing in her opinion, “It is not the court’s job to decide the better course, but to ensure the one taken was not arbitrary and capricious, or for a wrongful purpose. Although the decision was a painful one for the plaintiffs, it was done with a rational basis and passes muster under the law.” Baxter was appointed to the court by President Donald Trump (R).


Documenting America’s Path to Recovery: October 13, 2020

Welcome to Documenting America’s Path to Recovery, where we track the status of reopening in all 50 states. Today we look at new guidelines for private gatherings in California, the extension of a mask mandate in Colorado, school reopenings, and more. Want to know what happened yesterday? Click here.

Since our last edition

What is open in each state? For a continually updated article on reopening status in all 50 states, click here.

  • Maine (Democratic trifecta): The state will enter Stage 4 of reopening starting Oct. 13. Stage 4 will allow indoor activities and businesses like restaurants, movie theaters, and religious gatherings to expand operations to 50% capacity or up to 100 people (whichever is less). The order also requires masks in municipal buildings and private schools and expands enforcement of the face-covering mandate. Gov. Janet Mills (D) said the state was targeting Nov. 2 for bars and tasting rooms to resume indoor service.
  • New Hampshire (divided government): On Tuesday, Oct. 13, Superior Court Judge David Anderson ruled Gov. Chris Sununu (R) was not required to obtain the legislature’s approval to spend federal dollars in response to the coronavirus pandemic. Democratic legislative leaders filed the lawsuit, alleging that Gov. Sununu did not have the authority to unilaterally spend CARES Act funds.
  • New Jersey (Democratic trifecta): Gov. Phil Murphy (D) signed an executive order allowing state-classified medium- and high-risk sports practices and competitions (like hockey, basketball, and cheerleading) to resume in indoor venues with capacity limits.
  • Utah (Republican trifecta): On Tuesday, Oct. 13, Gov. Gary Herbert (R) announced the state was replacing the color-coded reopening guidance system with a three-tiered system focused on transmission rates. Counties will be classified as high, moderate, or low depending on COVID-19 spread, and will only be allowed to move to a lower level after 14 days.
  • West Virginia (Republican trifecta): Bars in Morgantown, where West Virginia University is located, can reopen on Oct. 13. Gov. Jim Justice (R) ordered bars closed in the area on Sept. 2.

Daily feature: Schools

All 50 states closed schools to in-person instruction at some point during the 2019-2020 academic year. Beginning in May 2020, schools in certain states began to reopen. In which states are schools allowed to open? In which states are they ordered to remain closed?

The current status of school reopenings is as follows:

  • Washington, D.C., has a district-ordered school closure.
    • 2016-17 enrollment: 85,850 students (0.17% of students nationwide)
  • Seven states (Calif., Del., Hawaii, N.C., N.M., Ore., W.V.) have state-ordered regional school closures, require closures for certain grade levels, or allow hybrid instruction only.
    • 2016-17 enrollment: 9,366,079 students (18.51% of students nationwide)
  • Four states (Ark., Fla.*, Iowa, Texas) have state-ordered in-person instruction.
    • 2016-17 enrollment: 9,180,918 students (18.15% of students nationwide)
    • *Note: Three counties in South Florida are not at the same phase of reopening as the rest of the state and the emergency order to reopen schools does not affect them.
  • Thirty-nine states have reopenings that vary by school or district.
    • 2016-17 enrollment: 31,955,012 students (63.17% of students nationwide)

Additional activity

In this section, we feature examples of other federal, state, and local government activity, private industry responses, and lawsuits related to the pandemic.

  • On Oct. 8, New York officials closed a Brooklyn law firm after an increase in Covid-19 infection rates near its office. The law firm sued Gov. Andrew Cuomo (D) and New York City Mayor Bill DeBlasio (D) in the U.S. District Court for the Eastern District of New York. The firm, which is in an area deemed a “red-zone” under the state’s “cluster action initiative,” alleges there is “no scientific or other rational basis” for classifying certain parts of the state in this manner. The suit “seeks recovery for deprivations sustained by Plaintiff, and for violations committed by Defendants while acting under color of state law against Plaintiff’s rights and privileges guaranteed by” the U.S. Constitution. In a statement, Richard Azzopardi, a representative for Gov. Cuomo, said, “We’re focused on breaking this cluster and saving lives. Being unhappy is better than being sick or dead.” The case has not yet been assigned to a judge.


Checks and Balances: October 2020

The Checks and Balances Letter delivers news and information from Ballotpedia’s Administrative State Project, including pivotal actions at the federal and state levels related to the separation of powers, due process and the rule of law.

This edition:In this month’s edition of Checks and Balances, we review an order from the Federal Communications Commission that moves the agency away from formal adjudication procedures; proposed rulemaking to reclassify administrative law judges in the excepted service; and new agency guidance aimed at implementing fairness principles in adjudication.

At the state level, we examine the nondelegation doctrine’s role in a Michigan case challenging coronavirus-related emergency orders; a challenge to administrative due process protections in Arizona; and a Colorado case concerning deference to state agency disciplinary procedures.

We also highlight a new book about the administrative state and new findings from Ballotpedia’s survey of all 50 state constitutions and administrative procedure acts examining state-level sunset provisions for administrative rules. As always, we wrap up with our Regulatory Tally, which features information about the 178 proposed rules and 279 final rules added to the Federal Register in September and OIRA’s regulatory review activity.


In Washington

New FCC order further narrows adherence to formal adjudication

  • What’s the story? The Federal Communications Commission (FCC) on September 14 released a Report and Order allowing the agency’s adjudicators to conduct more hearings through written testimony rather than in-person, trial-type procedures.
  • Although the Communications Act of 1934 does not require the FCC to hold on-the-record hearings or follow formal adjudication procedures, the agency has historically modeled its hearings on the Administrative Procedure Act’s (APA) formal adjudication procedures, which require trial-type hearings presided over by an administrative law judge (ALJ).
  • The FCC’s order shifts the agency’s default approach to hearings from formal, trial-type processes to informal procedures that rely on written testimony. In order to determine whether written testimony satisfies procedural due process requirements in a particular case, the presiding officer must apply the three-part test from the U.S. Supreme Court decision in Mathews v. Eldridge, which evaluates the fairness and reliability of existing procedures in addition to the added value of further procedural safeguards.
  • Want to go deeper?

OIRA directs agencies to implement fairness principles in adjudication

  • What’s the story? The Office of Information and Regulatory Affairs (OIRA) on August 31 issued guidance for federal agencies to implement Section 6 of President Trump’s Executive Order 13924, which calls for agencies to consider a list of fairness principles in agency adjudication proceedings and revise their procedures as appropriate.
  • The memo puts forth best practices for agencies to consider incorporating in order to address the following fairness principles in adjudication:

“a) Administrative enforcement should be prompt and fair.

(b) Administrative adjudicators should be independent of enforcement staff.

(c) Consistent with any executive branch confidentiality interests, the Government should provide favorable relevant evidence in possession of the agency to the subject of an administrative enforcement action.

(d) All rules of evidence and procedure should be public, clear, and effective.

(e) Penalties should be proportionate, transparent, and imposed in adherence to consistent standards and only as authorized by law.

(f) Administrative enforcement should be free of improper Government coercion.

(g) Administrative enforcement should be free of improper Government coercion.

(h) Liability should be imposed only for violations of statutes or duly issued regulations, after notice and an opportunity to respond.

(i) Administrative enforcement should be free of unfair surprise.

(j) Agencies must be accountable for their administrative enforcement decisions.”

Office of Personnel Management proposes to reclassify ALJs within civil service

  • What’s the story? The Office of Personnel Management (OPM) on September 21 issued a proposed rule that would reclassify administrative law judges (ALJ) within the federal civil service. The proposed rule aims to implement President Donald Trump’s (R) Executive Order 13843 of July 2018, which moved ALJs from the competitive service to the excepted service.
  • Prior to E.O. 13843, OPM screened ALJ candidates through a merit-based selection process as part of the competitive service. Agencies could only hire ALJs from OPM’s pool of vetted candidates.
  • President Trump issued E.O. 13843 in response to the United States Supreme Court’s June 2018 decision in Lucia v. SEC, which held that ALJs are officers of the United States who must be appointed by the president, the courts, or agency heads rather than hired by agency staff. The reclassification of ALJs as members of the excepted service allows agency heads to directly appoint ALJs and select candidates who meet specific agency qualifications, according to the order.
  • Opponents of Trump’s executive order argue that moving ALJs outside of the competitive service threatens their impartiality by allowing partisan agency heads to appoint ALJs based on their own standards. Proponents argue that the order strengthens ALJ subject matter expertise by allowing agency heads to consider qualifications beyond the scope of OPM’s generalist vetting criteria.
  • The proposed rule from OPM requires that agency heads appoint new ALJs to positions within the excepted service. The proposed rule also clarifies that certain protections aimed at ensuring the independence of ALJs remain intact, such as the prohibition against agencies subjecting ALJs to performance reviews and the role of the Merit Systems Protection Board (MSPB) in overseeing ALJ discipline. The proposed rule is open to public comments through November 20, 2020.
  • Want to go deeper?

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In the states

Nondelegation doctrine resurfaces in challenge to Michigan coronavirus orders

  • What’s the story?: The Michigan Supreme Court on October 2 revived the nondelegation doctrine in an opinion holding in part that Michigan’s Emergency Powers of the Governor Act (EPGA) violates the nondelegation doctrine by unconstitutionally delegating legislative power to the executive branch.
  • Governor Gretchen Whitmer (D) claimed that the declared states of emergency and disaster in response to the coronavirus pandemic authorized her to issue executive orders instituting coronavirus-related restrictions. Whitmer stated that the EPGA and the Emergency Management Act (EMA) allowed her to extend those emergency declarations without the state legislature’s approval.
  • Medical groups challenged an order, since rescinded, that placed restrictions on nonessential medical and dental procedures.
  • The district court asked the Michigan Supreme Court to consider in part whether the EPGA or the EMA violated the state constitution.
  • The majority held that the EMPGA violated the nondelegation doctrine because it delegated lawmaking authority to the executive branch. Justice Stephen Markman wrote in the majority opinion, “[T]he EPGA is in violation of the Constitution of our state because it purports to delegate to the executive branch the legislative powers of state government— including its plenary police powers—and to allow the exercise of such powers indefinitely.”
  • Justices McCormick, Bernstein, and Cavanagh, and Bernstein disagreed with the majority’s holding. The justices claimed that the United States Supreme Court and the Michigan Supreme Court have historically applied the nondelegation doctrine via a “standards” test (i.e. intelligible principle test) that only strikes down delegations of authority without guiding standards for agency discretion. The delegations of authority under the EPGA, the justices argued, contained sufficient guiding standards for the agency.
  • Justice Viviano agreed with the majority’s holding and suggested that the court in future cases adopt the nondelegation doctrine approach put forth by U.S. Supreme Court Justice Gorsuch in Gundy v. United States, which focuses on whether Congress delegated lawmaking power to the executive rather than whether Congress provided a guiding standard.
  • Want to go deeper?

Administrative due process deficits challenged in Arizona

  • What’s the story? Maricopa County Superior Court Judge Douglas Gerlach on September 9 upheld a decision by then-Arizona Department of Child Safety (DCS) Director Gregory McKay in a case challenging the constitutionality of the procedural due process protections available to individuals during the agency’s adjudication of child abuse allegations.
  • McKay placed Phillip B. (the only name provided) on the child abuse registry despite a finding by an administrative law judge (ALJ) that no probable cause existed to do so. Arizona law permits the DCS director to substitute his own judgment for that of the ALJ.
  • Phillip B. challenged the low standard of proof (probable cause) in the agency’s review process; the lack of cross-examination of witnesses; and the unilateral power of the DCS director to reverse an ALJ’s findings. The DCS director, according to the challenge, is not an impartial adjudicator because he exercises both investigatory and adjudicatory functions.
  • Gerlach declined to rule on the constitutional challenges raised by Phillip B. for factual reasons. He wrote in part that the bias challenge “flies in the face of well-settled law that ‘the combining of investigatory and adjudicatory functions [in a single agency] does not violate due process’ unless actual bias is shown.”
  • Phillip B. plans to appeal the decision.
  • “The court decided not to review the myriad due-process and separation-of-powers problems for factual reasons,” said attorney Aid Dynar of the New Civil Liberties Alliance in a statement. “At the same time, the court decided not to take a look at the facts to avoid the serious legal problems with Arizona’s administrative law. The court’s double-dodge offers an enticing recipe for appeal, and that is precisely what we plan to do.”
  • Want to go deeper?

Colorado Supreme Court to consider deference to agency disciplinary decisions

  • What’s the story? The Colorado Supreme Court is set to evaluate disciplinary procedures for the state’s 30,000 civil service members in a case concerning the firing and reinstatement of a state employee.
  • The Colorado Department of Corrections (DOC) argues that the State Personnel Board overstepped its authority when it reinstated a DOC employee who had been fired for drug use. DOC attorneys claim that the board is required to defer to state agency disciplinary decisions and can only reverse a firing under a specific set of circumstances that favor the agency.
  • “The decision… concentrates power over 30,000 state classified employees with the board. It has far-reaching consequences for state agencies’ ability to run their organizations that the legislature never intended, and injects unnecessary uncertainty into decisions made by appointing authorities following their policies,” wrote DOC attorneys in a court brief.
  • Attorneys for the State Personnel Board disagree, arguing that no deference to state agencies is required and that the board must independently review the facts of a case when reviewing an employee’s appeal.
  • Denise DeForest, a former Colorado administrative law judge, told The Denver Post that the independence of State Personnel Board decisions operate as a check on agency power in the state. “You can’t be a watchdog if nobody will file an appeal because an appeal is just a rubber stamp,” said DeForest.
  • Want to go deeper?

New book: Law & Leviathan: Redeeming the Administrative State, by Cass Sunstein and Adrian Vermeule

Administrative law scholars Adrian Vermeule and Cass Sunstein released a new book, Law & Leviathan: Redeeming the Administrative State, that aims to defend the moral foundation of the administrative state. Drawing from the moral legal principles put forth by philosopher Lon Fuller, Vermeule and Sunstein argue that agency procedures that seek to enhance accountability and transparency in rulemaking and adjudication bolster the morality of the rule of law. The principles of law’s morality, according to the authors, can help settle conflicts in administrative law and support its just application.

In a piece for The New York Times, the authors provide snapshots of law’s morality as applied by the courts:

“In our view, courts should be taking the morality of law quite seriously. Fortunately, they often do. Indeed, many of the principles of legal morality that Professor Fuller listed have been invoked by the Roberts court in a number of domains.

“The Roberts court has emphasized, for example, that agencies must follow their own rules, reducing the risk that they will make decisions on a case-by-case basis. It has also repeatedly emphasized the importance of “reliance interests,” which arise whenever people act in ways that depend on existing rules, and thus the court has worked to combat unduly rapid changes in the law. A recent example is the court’s decision on the “Deferred Action for Childhood Arrivals program, or DACA, which required the Department of Homeland Security to do more to consider the reliance interests of program participants. Right or wrong, the decision was animated by an account of law’s morality.

“Law’s morality also animated some lower court decisions that invalidated Obama administration initiatives. One example is the decision that issued an injunction against the Obama administration’s initial adoption of the DACA program and the related Deferred Action for Parents of Americans program, on the ground, among others, that the administration had attempted to disguise a substantive change in the law as a mere exercise of enforcement discretion. The court claimed, in effect, that there was a mismatch between rules as announced and rules as administered.”


Ballotpedia study shows that 11 states have sunset provisions for administrative rules

A Ballotpedia survey of all 50 state constitutions and administrative procedure acts (APAs) concluded that 11 state constitutions or APAs contain sunset provisions for administrative rules, as of September 2020.

  • 11 states have APAs with sunset provisions for administrative rules.
  • 2 states have APAs with conditional sunset provisions for administrative rules that only kick in in certain circumstances.
    • In Arizona, the Governor’s Regulatory Review Council may choose to impose sunsets on rules during regular review periods.
    • In Vermont, the Legislative Committee on Administrative Rules may impose sunsets for rules that have not been readopted or amended in the preceding six years.
  • 37 states do not have APAs or constitutions with sunset provisions for administrative rules.

Ballotpedia also examined state APAs and constitutions that provide for regulatory review bodies. View those results here.

  • Want to go deeper? 

Regulatory tally

Federal Register

Office of Information and Regulatory Affairs (OIRA)

OIRA’s recent regulatory review activity includes:

  • Review of 48 significant regulatory actions. Between 2009-2016, the Obama administration reviewed an average of 45 significant regulatory actions each September.
  • Four rules approved without changes; recommended changes to 42 proposed rules; two rules withdrawn.
  • As of October 2, 2020, OIRA’s website listed 125 regulatory actions under review.
  • Want to go deeper? 

This Checks and Balances newsletter is part of Ballotpedia’s Administrative State Project, a nonpartisan encyclopedic resource that also features the latest data on federal regulatory activity, including a rolling page count of the Federal Register and the volume of rulemaking.

You can view an index of these pages here. View the pages and you will come away knowing the difference between the administrative state, the regulatory state, and the dark state—and so much more. New entries to our encyclopedia are added weekly.



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