CategoryNewsletters

Bold Justice: No U.S. Circuit Court of Appeals vacancies

Welcome to the September 14 edition of Bold Justice, Ballotpedia’s newsletter about the Supreme Court of the United States (SCOTUS) and other judicial happenings around the U.S. There’s less than a month to go before the Supreme Court begins its new term! We know you are as excited as we are. In the meantime, follow us on Twitter or subscribe to the Daily Brew for all the latest information.

The court will begin its 2020-2021 term on October 5. So far, the justices have agreed to hear 31 cases. Of those, 12 were originally scheduled for the 2019 term but were delayed because of the coronavirus pandemic. Click here to read more about SCOTUS’ 2020-2021 term.

The Supreme Court finished its 2019-2020 term on July 9. The court agreed to hear arguments in 74 cases, but heard arguments in only 61 cases due to the coronavirus pandemic. Click here to read more about SCOTUS’ 2019-2020 term.

Upcoming SCOTUS dates

Here are the upcoming dates of interest in September and October:

  • September 29: SCOTUS will conference. A conference is a private meeting of the justices.
  • October 5: SCOTUS will begin its 2020-2021 term, hearing arguments in two cases.

The Federal Vacancy Count tracks vacancies, nominations, and confirmations to all United States Article III federal courts in a one-month period. This month’s edition includes nominations, confirmations, and vacancies from August 3 to September 1.

Highlights

  • Vacancies: There have been no new judicial vacancies since the previous report. There are 72 vacancies out of 870 active Article III judicial positions on courts covered in this report. Including the United States Court of Federal Claims and the United States territorial courts, 78 of 890 active federal judicial positions are vacant.
  • Nominations: There have been five new nominations since the previous report.
  • Confirmations: There has been one new confirmation since the previous report.

Vacancy count for September 1, 2020

A breakdown of the vacancies at each level can be found in the table below. For a more detailed look at the vacancies on the federal courts, click here.

*Though the United States territorial courts are named as district courts, they are not Article III courts. They are created in accordance with the power granted under Article IV of the U.S. Constitution. Click here for more information.

New vacancies

No judges have left active status, creating Article III life-term judicial vacancies, since the previous vacancy count. The president must make a nomination to fill vacant Article III judicial positions. Nominations are subject to confirmation on the advice and consent of the U.S. Senate.

U.S. Circuit Court of Appeals vacancies

Seventeen U.S. Court of Appeals judgeships were vacant when President Trump was inaugurated on January 20, 2017. Today, there are no U.S. Circuit Court of Appeals vacancies. According to the Administrative Office of U.S. Courts, no U.S. Circuit Court of Appeals judges have announced their intent to leave active judicial status during the remainder of Trump’s current term.

This is the first time there have been no federal appeals court vacancies since at least 1977. Between January 1, 1977, and January 1, 2019, an average of 9.6% of U.S. Circuit Court of Appeals judgeships were vacant.

U.S. District Court vacancies

The following map displays U.S. District Court vacancies as of September 1.

New nominations

President Trump has announced five new nominations since the previous report.

  • Kathryn Kimball Mizelle, to the U.S. District Court for the Middle District of Florida.
  • Benjamin Beaton, to the U.S. District Court for the Western District of Kentucky.
  • Hector Gonzalez, to the U.S. District Court for the Eastern District of New York.
  • Ryan McAllister, to the U.S. District Court for the Northern District of New York.
  • David Woll, to the U.S. District Court for the Eastern District of New York.

The president has announced 267 Article III judicial nominations since taking office January 20, 2017. The president named 69 judicial nominees in 2017, 92 in 2018, and 77 in 2019. For more information on the president’s judicial nominees, click here.

New confirmations

Between August 3 and September 1, the Senate confirmed one of the president’s nominees to an Article III court.

Between January 2017 and September 1, 2020, the Senate confirmed 203 of President Trump’s judicial nominees—146 district court judges, 53 appeals court judges, two Court of International Trade judges, and two Supreme Court justices.

Trump is tied with President Bill Clinton (D) for the second-most Article III judicial appointments through September 1 of his fourth year of all presidencies since Jimmy Carter (D). The Senate confirmed 248 of Carter’s federal judicial appointees at this point in his presidency.

The average number of confirmed presidential judicial appointees through September 1 of a president’s fourth year in office is 191.

The median number of U.S. Court of Appeals appointees is 35. Carter appointed the most with 54, while Reagan appointed the least with 28. Trump’s 53 appointments make up 30% of the 179 federal appellate court judgeships.

Need a daily fix of judicial nomination, confirmation, and vacancy information? Click here for continuing updates on the status of all federal judicial nominees.

Or, if you prefer, we also maintain a list of individuals the president has nominated.


In the next several Bold Justice editions, we’re taking a closer look at the nine U.S. Supreme Court justices. Today, we’re learning about Chief Justice John Roberts.Roberts has been chief justice since September 29, 2005. President George W. Bush (R) originally nominated Roberts on July 19, 2005, to be an associate justice succeeding Sandra Day O’Connor. President Bush withdrew his nomination after Chief Justice William Rehnquist died on September 3, 2005. On September 6, the president renominated Roberts to be the 17th chief justice of the U.S. Supreme Court. The U.S. Senate confirmed Roberts by a 78-22 vote on September 29, 2005.

Before joining the U.S. Supreme Court, Roberts was a judge on the U.S. Court of Appeals for the D.C. Circuit. Before that, he worked in private practice and for the U.S. Department of Justice. After law school, Roberts was a law clerk to U.S. Supreme Court Justice William Rehnquist.

Roberts was born in Buffalo, N.Y., on January 27, 1955. He is a practicing Roman Catholic. He attended private schools as a child and graduated from La Lumiere School, an all-boys Roman Catholic boarding school in LaPorte, Indiana, as class valedictorian in 1973.

Roberts earned an undergraduate degree, summa cum laude, from Harvard University in 1976. He wrote his thesis on British liberalism in the early 20th century. Roberts also earned his J.D., magna cum laude, from Harvard Law School in 1979. During his legal studies, Roberts served as managing editor of the Harvard Law Review.

In the 2019-2020 term, Roberts wrote the following opinions:

We’ll be back October 5 with a new edition of Bold Justice.


Bloomberg pledges $100 million to help Biden in Florida

Ballotpedia's Daily Presidential News Briefing
September 14, 2020: Former New York City Mayor Michael Bloomberg committed at least $100 million to help Joe Biden’s campaign in Florida. Donald Trump held his first indoor rally in three months in Henderson, Nevada, on Sunday.


The Cook Political Report updated its race ratings on September 10, 2020:

  • Florida moved from Leans Democratic to Toss Up.
  • Nevada moved from Likely Democratic to Leans Democratic.

Sabato’s Crystal Ball also updated its race ratings on September 10, 2020:

  • Nebraska’s 2nd Congressional District moved from Toss Up to Leans Democratic. Nebraska and Maine are the only states to appoint individual electors based on the popular vote statewide and in each congressional district.

Notable Quote of the Day

“While debates are often seen as gamechangers, it’s often the period after the conventions are in the rearview mirror and before the debates when the political environment becomes clear.

Take a look at all the election cycles since 1972. Specifically, look at where the national polling averages stood 35 days before the election (i.e. the day of the first 2020 general debate). The polls have been surprisingly predictive.

There has just been about a 3 point difference between where the polling average stood 35 days before the election and the eventual result. To put that into context, there has been about a 2 point difference between the polling averages and the results on the final day of the election.”

– Harry Enten, CNN

Election Updates

  • Joe Biden will discuss climate change and the economy during an event in Delaware on Monday.
  • Biden is airing new Spanish-language ads in Florida about the economy, coronavirus pandemic, and Donald Trump’s response to Hurricane Maria.
  • Former New York City Mayor Michael Bloomberg committed at least $100 million to help Biden’s campaign in Florida. The spending will primarily be focused on television and digital advertising.
  • Trump held his first indoor rally in three months in Henderson, Nevada, on Sunday. With thousands of attendees, the city said the gathering was in violation of the state’s emergency directives. Trump campaign communications director Tim Murtaugh responded, “If you can join tens of thousands of people protesting in the streets, gamble in a casino, or burn down small businesses in riots, you can gather peacefully under the 1st Amendment to hear from the President of the United States.”
    ​​​​​
  • Trump is traveling to McClellan Park, California, to speak with local and federal officials about wildfires across the state.
  • A Wisconsin judge upheld a decision by the state elections commission to block Kanye West from the ballot after an aide submitted the paper after the 5 p.m.filing deadline.

Flashback: September 14, 2016

Gary Johnson qualified for the ballot in all 50 states.

Click here to learn more.



Documenting America’s Path to Recovery: September 11, 2020

Welcome to Documenting America’s Path to Recovery, where we track the status of reopening in all 50 states. Today we look at a Wisconsin Supreme Court ruling on in-person instruction in Dane County, schools in California receiving in-person education waivers, travel restrictions, and more. Want to know what happened yesterday? Click here.

The next 72 hours

What is changing in the next 72 hours?

  • Florida (Republican trifecta): On Sept. 14, bars may reopen at 50% capacity. The state’s Department of Business & Professional Regulation announced the reopening on Sept. 10.
  • Nebraska (Republican trifecta): On Sept. 14, all counties except Lancaster County will enter Phase Four of reopening. Gov. Pete Ricketts (R) made the announcement on Sept. 10. At the time of his announcement, 27 counties were in Phase Four.

Since our last edition

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

  • California (Democratic trifecta): The California Department of Public Health released a list of 414 schools that had applied for and received a waiver to begin in-person instruction. An additional 10 schools applied for the waiver but were denied. The waiver applies only to grades Transitional Kindergarten through 6th. These schools are all in counties on the state’s coronavirus watch list.
  • Iowa (Republican trifecta): Gov. Kim Reynolds (R) announced that schools opting for fully virtual instruction were not allowed to have in-person activities. “If students can’t be in school safely it makes no sense to have in-person extracurricular activities,” Reynolds said. Des Moines Public Schools, the state’s largest district, began fully virtual instruction this week without seeking the required waiver from the state.
  • Minnesota (divided government): On Sept. 11, Gov. Tim Walz (D) issued an executive order extending the peacetime emergency through Oct. 12. He first enacted the peacetime emergency in response to the coronavirus pandemic in March.
  • New York (Democratic trifecta): Gov. Andrew Cuomo (D) announced the state will spend $88.6 million of its CARES Act funding to help childcare providers reopen. Cuomo said an application for the funding will be available to childcare centers later in September and will remain open through Dec. 31.
  • Utah (Republican trifecta): On Sept. 11, Gov. Gary Herbert (R) issued an executive order moving Box Elder County and Carbon County into the green phase—the least restrictive of Utah’s four reopening phases. Thirteen counties are in green, while the remaining counties are in yellow.
  • Virginia (Democratic trifecta): On Sept. 10, Gov. Ralph Northam (D) issued an executive order moving the Hampton Roads area of Virginia back into Phase Three of reopening. Northam reimposed restrictions on Hampton Roads on July 28 following a spike in coronavirus cases.
  • Wisconsin (divided government): On Sept. 10, the Wisconsin Supreme Court, in a 4-3 decision, temporarily blocked restrictions on in-person learning at public and private schools in Dane County. The court agreed to hear legal challenges raised by several private schools. Because of the injunction, all schools in Dane County can reopen to in-person restrictions.

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

Connecticut, New Jersey, and New York – On Sept. 8, Govs. Ned Lamont (D-Conn.), Phil Murphy (D-N.J.), and Andrew Cuomo (D-N.Y.) announced that Delaware, Maryland, Ohio, and West Virginia had been added to the joint travel advisory list. Puerto Rico and the Virgin Islands were removed from the list.

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 Sept. 2, a gaming arcade filed suit in the U.S. District Court for the District of Massachusetts, against Gov. Charlie Baker (R), challenging Baker’s designation of gaming arcades as Phase IV businesses under the state’s reopening plan. Phase IV businesses are allowed to reopen only after a vaccine or treatment for COVID-19 is available. The arcade claims this policy violates its First and Fourteenth Amendment rights. Citing discussions with surrounding states, Baker announced in a Sept. 10 press briefing that gaming arcades would be designated as Phase III businesses, allowing them to reopen. Bit Bar owner Gideon Coltof, said, “I’m certain our lawsuit had something to do with it.” There has been no public comment on whether the lawsuit will proceed.


Class-action lawsuits over repaying public-sector union fees rejected

Third Circuit rejects class-action lawsuits over repaying public-sector union fees                   

On Aug. 28, a three-judge panel of the United States Court of Appeals for the Third Circuit affirmed two lower court rulings that public-sector unions cannot be held liable for repaying fees collected from non-members before Janus v. AFSCME.

Who are the parties to the suit?  

The Third Circuit issued a joint ruling on two separate, but related, lawsuits: 

Diamond v. Pennsylvania State Education Association

The plaintiffs are Arthur Diamond, Jeffrey Schawartz, Sandra H. Ziegler, Matthew Shively, Matthew Simkins, Douglas R. Kase, and Justin Barry, all current or former public school teachers in Pennsylvania. The defendants are the Pennsylvania State Education Association, the Chestnut Ridge Education Association, the National Education Association, and several individuals in their official state capacities.

Wenzig v. Service Employees International Union Local 668

The plaintiffs are Janine Wenzig and Catherine Kioussis, two Pennsylvania state employees. The defendant is the Services Employees International Union Local 668.

What is at issue?

On June 27, 2018, the Supreme Court of the United States issued its decision in Janus v. American Federation of State, County, and Municipal Employees. In a 5-4 decision, the court ruled that public-sector unions cannot compel non-member employees they represent to pay fees to cover the costs of non-political union activities. To do so, the court determined, would constitute a violation of employees’ First Amendment rights.

Janus overturned the court’s 1977 decision in Abood v. Detroit Education Association. In Abood, the court ruled that public-sector unions could require non-members to pay fees to support union activities that benefitted them (e.g., collective bargaining).  These fees are generally referred to as either fair-share or agency fees. 

After Janus, the plaintiffs in both Diamond and Wenzig petitioned for reimbursement for the agency fees they, and those similar to them, paid before Janus. On July 8, 2019, Judge Kim Gibson of the U.S. District Court for the Western District of Pennsylvania dismissed Diamond, ruling that the union had collected the fees in good faith given then-prevailing law. On Dec. 10, 2019, Judge Malachy E. Mannion of the U.S. District Court for the Middle District of Pennsylvania issued a similar dismissal for Wenzig. 

Both the Diamond and Wenzig plaintiffs appealed to the Third Circuit, which consolidated the two suits. Oral argument occurred on April 24. 

How did the court rule?

The appellate panel voted 2-1 to affirm the lower court decisions. Judge Marjorie Rendell, a Bill Clinton (D) appointee, wrote the court’s opinion. Rendell cited similar recent decisions by other federal appellate courts.

We are not the first court of appeals to rule on this question, and we join a growing consensus of our sister circuits who, in virtually identical cases, have held that because the unions collected the fair-share fees in good faith reliance on a governing state statute and Supreme Court precedent, they are entitled to a good faith defense that bars Appellants’ claims for monetary liability under 42 U.S.C. §1983.

42 U.S.C. §1983 “creates a cause of action for plaintiffs who are injured by a person who, acting ‘under the color of any statute … of any State,’ causes the plaintiff to suffer ‘the deprivation of any rights, privileges, or immunities secured by the Constitution.” Rendell, pointing to unclear Supreme Court precedent on the question of whether “private parties may assert a good faith defense to §1983 liability,” cited a Third Circuit precedent to that effect: 

In Jordan v. Fox, Rothschild, O’Brien & Frankel, we held that a ‘good faith defense is available’ to private parties who act under color of state law and are sued for monetary liability under §1983. We stated our ‘basic agreement’ that ‘private defendants should not be held liable under §1983 absent a showing of malice and evidence that they either knew or should have known of the state’s constitutional infirmity.’

Judge D. Michael Fisher, a George W. Bush (R) appointee, wrote a separate opinion concurring in the court’s judgment but dissenting from Rendell’s reading of 42 U.S.C. §1983:

[The] Supreme Court has … read immunities and defenses into § 1983, but it has done so principally on the conceit that they were available at common law in 1871, and implicitly incorporated into the statute. While this approach certainly limits the scope of liability, it also constrains judges from straying too far from the statutory text.

Judge Peter Phipps, a Donald Trump (R) appointee, dissented from the judgment, writing: 

The central question presented in these consolidated cases, which seek recovery of agency fees garnished from the wages of non-union members, is whether a good faith affirmative defense exists to a First Amendment compelled speech claim under §1983. I do not see a valid basis for recognizing such a defense. A good faith affirmative defense was not firmly rooted in the common law in 1871 when § 1983 was enacted, and nothing else compels recognition of such a defense today.

About the Third Circuit

The United States Court of Appeals for the Third Circuit is a federal court that hears appeals from the district courts in Delaware, New Jersey, and Pennsylvania. The court has 14 authorized judicial posts and no current vacancies. The chief judge is Brooks Smith, a George W. Bush appointee. Of the court’s 14 active judges, six were appointed by Democrats and eight by Republicans. Appeals are heard in the James A. Byrne Federal Courthouse in Philadelphia, Pennsylvania. 

What comes next?

Attorneys for the plaintiffs have not said whether they intend to appeal the decision. The case names and numbers are Diamond v. Pennsylvania State Education Association (19-2812) and Wenzig v. Service Employees International Union Local 668 (19-3906).

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

No legislative actions have been taken on relevant bills since our last issue.



Biden, Trump travel to Pennsylvania for 9/11 memorial

Ballotpedia's Daily Presidential News Briefing
September 11, 2020: Joe Biden and Donald Trump are both traveling to Shanksville, Pennsylvania, to commemorate September 11. Howie Hawkins can stay on the ballot in Pennsylvania. Kanye West is blocked from the ballot in Ohio.

Notable Quote of the Day

“Should any [election law] cases make their way to the Supreme Court, it’s not clear how the justices would rule — especially without knowing the precise nature of the dispute. In the few disputes related to voting and Covid-19 that the court has ruled on to date, it has delivered a mixed bag of outcomes.

In one illustration of the court’s unpredictability, last month it rejected an effort by Republicans opposing eased vote-by-mail rules in Rhode Island that were supported by state officials. The month before, it blocked a court ruling that would have imposed similar eased rules in Alabama.

In both cases, and in several other similar ones, the court has shown more of a reluctance to second-guess state officials than support for any particular voting rules.”

– Tucker Higgins, CNBC​​​​​

Election Updates

  • More than 2 million absentee ballots have been requested in Michigan, beating the previous all-time record eight weeks before the general election. Ohio also received 1 million requests, hitting that benchmark a month faster than it had in 2016.
  • Joe Biden and Donald Trump are both traveling to Shanksville, Pennsylvania, to commemorate September 11 at the Flight 93 National Memorial on Friday. Their appearances will take place at separate times.
  • Biden is also attending a ceremony at the 9/11 Memorial & Museum in New York City in the morning. He also temporarily pulled his television ads for the day, which has become a precedent for presidential campaigns since 2004.
  • CNN announced it is hosting a town hall in Scranton, Pennsylvania with Biden on September 17.
  • Trump is still expected to campaign in Nevada over the weekend. He originally planned to hold rallies at airport hangars in Reno and Las Vegas, but the events were canceled due to COVID-19 restrictions.
  • An appellate court judge in Pennsylvania ruled that Howie Hawkins could appear on the ballot after Democrats challenged his paperwork. Hawkins’ running mate, Angela Nicole Walker, will not appear on the ballot.
  • The Ohio Supreme Court upheld a decision to bar Kanye West from the ballot because of issues with his nominating petition.

Flashback: September 11, 2016

Hillary Clinton and Donald Trump both visited Ground Zero in New York City to commemorate September 11.blank

Click here to learn more.



Documenting America’s Path to Recovery: September 10, 2020

Welcome to Documenting America’s Path to Recovery, where we track the status of reopening in all 50 states. Today we look at Louisiana’s next phase of reopening, a California coronavirus bill providing paid sick leave, an update to a lawsuit over Arizona’s bar closure, 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.

  • California (Democratic trifecta): Gov. Gavin Newsom (D) signedAB 1867, which requires paid sick days for any employee who has been exposed to or tests positive for coronavirus.
  • Louisiana (divided government): Gov. John Bel Edwards (D) announced the state will enter a modified Phase 3 of reopening, starting Sept. 11. Bel Edwards said final details will not be available until Sept. 11. The state entered Phase 2 on June 5.
  • Maryland (divided government): Gov. Larry Hogan (R) announced the state acquired 250,000 rapid antigen tests, becoming the first member of the 10-state testing compact partnering with the Rockefeller Foundation to acquire rapid tests. The 10-state group has a stated goal to acquire five million rapid antigen tests.
  • Michigan (divided government): On Sept. 9, the Michigan Occupational Safety and Health Administration (MIOSHA) released reopening guidelines for gyms, bowling alleys, swimming pools, and other similar businesses. Those businesses were permitted to reopen on Sept. 9 per an executive order from Gov. Gretchen Whitmer (D). The guidelines state that those businesses can reopen at 25% capacity.
  • Nebraska (Republican trifecta): Gov. Pete Ricketts (R) announced that all counties except Lancaster County would enter Phase Four of reopening on Sept. 14. Currently, there are 27 counties in Phase Four.

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 COVID-19 restrictions in Arizona.

Aguila v. Ducey

On Sept. 8, Maricopa County Superior Court Judge Pamela Gates declined to block Arizona Gov. Doug Ducey’s (R) COVID-19 business restrictions, which close bars while allowing restaurants to remain open and serve alcohol.

What is at issue?

In their complaint, which was originally filed in the state supreme court, a group of Arizona bar owners argued they were discriminated against because of their on their liquor license series. They said bars with “series 6 or 7 liquor licenses are subject to closure orders in Executive Order 2020-43,” while roughly 5,000 restaurant bars, hotel bars, microbreweries, wineries, private clubs, distilleries, tasting rooms, which have different series liquor licenses, remained open. They said Ducey’s restrictions were an unconstitutional delegation of authority; exceeded statutory rulemaking authority granted by Arizona law; arbitrarily discriminated against plaintiffs and deprive them of their property, in violation of the state constitution; and violated the Equal Protection and Takings Clauses of the U.S. Constitution.

How did the court rule?

Citing the “unrelenting spread of the novel coronavirus,” Gates found that “the public interest is overwhelmingly in favor of the continuation of” Ducey’s orders. Gates ruled there is “no inherent right in a citizen to … sell intoxicating liquors by retail,” and further, the governor’s restrictions “are rationally related to expert data and guidance on minimizing the spread of COVID-19.”

What are the reactions, and what comes next?

Attorney Ilan Wurman, representing the bar owners, acknowledged the likelihood of failure on the merits, saying he hoped to “get a summary judgment ruling quickly and just move on to the appeal.”



Trump, RNC raise $210 million in August, trail Biden and DNC’s fundraising total

Ballotpedia's Daily Presidential News Briefing
September 10, 2020: Donald Trump and the Republican National Committee raised $210 million in August, setting a record for the campaign. Bob Woodward released recorded interviews with Trump about the coronavirus.


Campaign Ad Comparison

DPNB campaign ad comparison feature, 2020 ("Concealed" – American Bridge 21st Century)

DPNB campaign ad comparison feature, 2020 ("Promises" – America First Action)

Notable Quote of the Day

“When you look at the rural areas, it’s the margins that matter. The suburbs get a lot of attention because you have those counties that used to be red, and now they’re blue. When you see that on a map on TV, it looks dramatic. But all these places that went from like 60-40 Republican to 80-20 for Trump are just as dramatic and they were critical to the result.”

– David Hopkins, associate professor of political science at Boston College

Election Updates

  • The Los Angeles Times endorsed Joe Biden on Thursday. The paper last backed a Republican nominee in 1972, endorsing Richard Nixon’s campaign, before taking a hiatus from endorsements for 36 years.
  • In a recorded interview with journalist Bob Woodward from February 2020 released on Wednesday, Donald Trump discussed the dangers of the coronavirus. He said it was deadlier than the flu and a delicate issue because it was airborne. In another interview about the coronavirus from March 2020, Trump said, “I wanted to always play it down. I still like playing it down because I don’t want to create a panic.”
  • During an event in Michigan, Biden addressed Trump’s comments, saying, “He had the information. He knew how dangerous it was. And while this deadly disease ripped through our nation, he failed to do his job on purpose. It was a life-and-death betrayal of the American people.”
  • Trump defended his comments in a Fox News interview on Wednesday. He said, “I’m the leader of the country, I can’t be jumping up and down and scaring people. I don’t want to scare people. I want people not to panic, and that’s exactly what I did.”
  • Trump and the Republican National Committee raised $210 million in August, setting a record for the campaign. They trailed Biden and the Democratic National Committee’s fundraising total for the month by $154 million.
  • Trump released a list of 20 potential Supreme Court nominees on Wednesday. The list includes Sens. Tom Cotton (Ark.), Ted Cruz (Texas), and Josh Hawley (Mo.), and five current or former members of his administration.
  • Trump is speaking at the MBS International Airport in Saginaw County, Michigan, on Thursday evening.

Flashback: September 10, 2016

TIME reported that Hillary Clinton said at a fundraiser, “You could put half of Trump’s supporters into what I call the basket of deplorables.”blank

Click here to learn more.



Zuckerberg, Chan donate $300 million for state, local election administration efforts

On Sept. 1, Facebook chief executive officer Mark Zuckerberg and his wife, Dr. Priscilla Chan, announced they would donate a combined total of $300 million to the Center for Tech and Civic Life and the Center for Election Innovation and Research in a bid “to promote safe and reliable voting in states and localities during the COVID-19 pandemic.”

About the Center for Tech and Civic Life and the Center for Election Innovation and Research

The Center for Tech and Civic Life (CTCL) describes itself as “a nonpartisan nonprofit that uses technology to improve the way local governments and communities interact.” The nonprofit Center for Election Innovation and Research (CEIR) says its mission is “to build voter trust and confidence, increase voter participation, and improve the efficiency of election administration.”

Both CTCL and CEIR are organized under Section 501(c)(3) of the Internal Revenue Code, which exempts charitable, religious, and educational organizations from federal income tax. These and other nonprofits are required to submit regular financial disclosure reports to the Internal Revenue Service. According to CTCL’s 2019 disclosure, the group had $1,414,981 in revenues and spent $1,119,630 in 2018. CEIR, meanwhile, had $890,647 revenues and spent $515,837 in 2017 (the most recent year for which information is available).

About the donation

Zuckerberg and Chan donated $250 million to CTCL, which will in turn “regrant funds to local election jurisdictions across the country to help ensure that they have the staffing, training, and equipment necessary so that this November every eligible voter can participate in a safe and timely way and that their vote is counted.” These grants will be used to support:

  • Poll worker recruitment, training, and hazard pay
  • Polling place rental
  • Temporary staffing
  • Drive-through voting
  • Ballot processing equipment
  • Personal protective equipment for poll workers
  • Nonpartisan voter education

The press release announcing the grant said that Zuckerberg and Chan’s $50 million donation to CEIR would be used in “helping election officials across the nation reach their voters with critical information about voter registration, mail voting, early voting, polling locations and hours, and the vote-counting process.”

In a Facebook post, Zuckerberg said, “Priscilla and I are personally supporting [these] two non-partisan organizations that are working to make sure every voter’s voice can be heard this November.” He added, “This is in addition to the work that Facebook is doing to run the largest voting registration campaign in American history — with a goal of helping more than 4 million people register to vote and providing authoritative information about topics like how to vote by mail in each state.”

What are the reactions?

Support

  • In a Newsweek op-ed, the Brennan Center’s Wendy Weiser and Jennifer Weiss-Wolf, said: “[The] pandemic poses a national emergency impacting the very foundation of our democracy, and the Senate adjourned until Labor Day without giving states and local officials the funding they need to run safe and fair elections this fall. … We have reached an extraordinary point where we have no choice but to look to civil society—the business community and other private groups and organizations—to help fill the breach.”
  • Frank LaRose (R), Ohio’s secretary of state, said, “In a time when so much is changing around us, Americans need to know now more than ever how to make their voice heard in this fall’s election. That requires getting them the information they need from trusted sources, and these dollars are going to go a long way to making that happen.”

Criticism

  • Robert Reich, U.S. Secretary of Labor under President Bill Clinton (D), said, “Mark Zuckerberg has raked in $40,800,000,000 since the pandemic began. That’s 136 times the $300 million donation he hopes will distract us from all the ways he’s allowed fascism and misinformation to erode our democracy.”
  • Scott Walter, president of the Capital Research Center, said that CTCL staffers are former Democratic Party operatives whose goal is to improve Democrats’ electoral prospects: “Can you imagine if the Charles Koch Foundation were to become involved with election officials? It would be front page news in The New York Times.”

Absentee/mail-in voting modifications since our last issue

Since our Aug. 26 edition, we’ve tracked the following absentee/mail-in voting modifications:

  • Georgia: On Aug. 31, Judge Eleanor L. Ross of the U.S. District Court for the Northern District of Georgia issued an order extending the return deadlines for absentee ballots in the general election. Ross ordered officials to accept as valid any absentee ballots postmarked Nov. 3 and received by 7:00 p.m., Nov. 6.
  • Maine: On Aug. 27, Gov. Janet Mills (D) signed an executive order extending the mail-in voter registration deadline from Oct. 13 to Oct. 19.
  • Mississippi: On Sept. 2, Judge Denise Owens of the Hinds County Chancery Court ordered Mississippi officials to expand absentee voting eligibility in the general election to individuals with “pre-existing conditions that cause COVID-19 to present a greater risk of severe illness or death.”
  • New Jersey: On Aug. 28, Gov. Phil Murphy (D) signed three bills into law making a number of modifications to the state’s absentee/mail-in voting procedures for the general election. Among these changes is an extension of the receipt deadline for ballots postmarked on or before Election Day to Nov. 9).
  • New York: On Sept. 2, Gov. Andrew Cuomo (D) announced the launch of an online absentee ballot request portal for the general election.
  • Oklahoma: On Aug. 28, Gov. Kevin Stitt (R) issued an executive order extending Oklahoma’s state of emergency by 30 days. This triggered the implementation of several modifications to Oklahoma’s absentee ballot procedures. Among these changes is the suspension of the notarization requirement, provided the voter submits a copy of his or her identification.
  • Utah: On Aug. 31, Gov. Gary Herbert (R) signed into law legislation making several changes to administration procedures for the general election. Among these changes is the requirement that counties provide some form of in-person Election Day and early voting).

To date, 38 states have modified their absentee/mail-in voting procedures. These modifications can be divided into the following five broad categories. The changes may apply to primary, special, or general elections:

  • Automatic mail-in ballots: Five states (California, Montana, Nevada, New Jersey, and Vermont) either have sent or will send mail-in ballots automatically to all eligible voters in select elections to ensure that most voting takes place by mail. These states are shaded in yellow in the map below.
  • Automatic mail-in ballot applications: Seventeen states (Connecticut, Delaware, Georgia, Idaho, Illinois, Iowa, Maryland, Massachusetts, Michigan, Nebraska, New Mexico, New York, North Dakota, Rhode Island, South Dakota, West Virginia, and Wisconsin) either have sent or will send mail-in ballot applications automatically to all eligible voters in select elections. These states are shaded in dark blue in the map below.
  • Eligibility expansions: Ten states (Alabama, Arkansas, Indiana, Kentucky, Missouri, New Hampshire, Oklahoma, South Carolina, Tennessee, and Virginia) either have expanded or will expand absentee voting eligibility in select elections. These states are shaded in light blue in the map below.
  • Deadline extensions: Five states (Minnesota, Mississippi, Ohio, Pennsylvania, and Utah) either have extended or will extend absentee/mail-in ballot application or submission deadlines in select elections. These states are shaded in dark gray in the map below.
  • Other process changes: One state (North Carolina) has made other modifications to its absentee/mail-in ballot procedures in select elections. This state is shaded in gray in the map below.
M3Ydp-absentee-mail-in-voting-procedure-changes-in-response-to-the-coronavirus-pandemic-2020 (10).png

Redistricting developments since our last issue

Since our Aug. 26 edition, we’ve tracked the following redistricting-related developments.

  • On Sept. 5, Judge Lucy Koh of the U.S. District Court for the Northern District of California temporarily enjoined U.S. Secretary of Commerce Wilbur Ross and the U.S. Census Bureau from proceeding with plans to wind down census counting efforts. On Aug. 3, the Bureau announced its intention to suspend field data collection efforts by Sept. 30, saying it would use incentive awards and additional hires “to accelerate the completion of data collection and apportionment counts by our statutory deadline” of Dec. 30. On Sept. 3, the National Urban League, the League of Women Voters, and, the National Association for the Advancement of Colored Peoples, among others, motioned for an injunction against implementation of this plan. The plaintiffs allege that the plan’s “shortened timelines will unlawfully harm the accuracy of crucial census data.” Koh did not comment on the merits of plaintiffs’ larger claims. The injunction will remain in force until Sept. 17, when the court will conduct a hearing on the plaintiffs’ motion for a preliminary injunction.
    • A temporary restraining order is a short-term injunction against a challenged action (in this case, the Census Bureau’s Aug. 3 plan). It lasts only until a preliminary injunction hearing. If a preliminary injunction is granted, the challenged action will generally be enjoined for the duration of legal proceedings.

Litigation tracking

To date, we have tracked 227 lawsuits and/or court orders involving election policy issues and the COVID-19 outbreak. In each issue of The Ballot Bulletin, we shine a spotlight on what we consider one of the more interesting recent developments in this area. Click here to view the complete list of lawsuits and court orders.

This week, we turn our attention to DSCC v. Pate.

  • Case name: DSCC v. Pate
  • Case number: 05771 CVCV060641
  • State of origin: Iowa
  • Court: Polk County District Court
  • Summary: On Aug. 31, the Democratic Senatorial Campaign Committee (DSCC), the Democratic Congressional Campaign Committee (DCCC), and the Democratic Party of Iowa filed suit against Iowa Secretary of State Paul Pate (R) and the Iowa Legislative Council in the Polk County District Court. The plaintiffs allege the defendants’ July 17 emergency election directive, which prohibits county auditors from sending voters pre-addressed absentee ballot request forms, violates the state constitution.
    • Background: After state officials issued the directive, the auditors in Linn, Johnson, and Woodbury counties began mailing pre-address absentee ballot request forms to voters. State and national-level Republican groups filed suits against the three auditors, seeking injunctions “ordering each auditor to follow the directive.” On Aug. 27, a Linn County judge granted Republicans’ request for an injunction. A judge in Woodbury County did the same on Aug. 28. These actions precipitated the DSCC’s lawsuit.
  • Court documents:

Legislation tracking

To date, we have tracked 305 bills that make some mention of both election policy and COVID-19. States with higher numbers of relevant bills are shaded in darker blue on the map below. States with lower numbers of relevant bills are shaded in lighter blue. In states shaded in white, we have tracked no relevant bills.

Legislation related to elections and COVID-19, 2020

COVID-19 election bills September 9.png


Pro-Trump America First Action announces $22 million ad buy in FL, PA, WI, and OH

Ballotpedia's Daily Presidential News Briefing
September 9, 2020: The pro-Trump America First Action announced a $22 million ad buy in four battleground states. Maine Secretary of State Matthw Dunlap said he would proceed with printing ballots that included ranked choice voting for the presidential race.


Presidential Facebook ads, 2019-2020 (August 31-September 6)

Notable Quote of the Day

“I would say this about an October surprise. I mean, given this year, it’d be unlikely that there wouldn’t be a major turn of events between now and the election. But there will be no surprise that has to do with Trump. It’s just not possible. Everything that anybody could possibly think about him, good or bad, they already think. Like, when you think about a bell curve, he’s already at the tails. So, any surprise that happens will be a surprise around Biden-Harris.”

– Beth Hansen, former campaign manager for John Kasich

Election Updates

  • The Maine Supreme Court ruled on Tuesday that an appeal regarding a veto referendum on ranked choice voting effectively put its inclusion on the ballot on hold. As a result, Maine Secretary of State Matthw Dunlap said he would proceed with printing ballots that included ranked choice voting for the presidential race.
  • Joe Biden will speak in Warren, Michigan, about American manufacturing on Wednesday. Biden last visited the state in March.
  • Biden began airing two ads on leadership and Social Security and Medicare in key battleground states. The ads are part of a previously announced $47 million ad campaign this week.
  • The pro-Donald Trump America First Action announced a $22 million ad buy in Florida, Pennsylvania, Wisconsin, and Ohio that will run until Election Day. The ads will focus on protests in Wisconsin and other states, Biden’s mental acuity, and calls to defund the police.
  • While speaking in Florida on Tuesday, Trump said he planned to expand a moratorium on offshore drilling to the Atlantic coasts of Florida, South Carolina, and Georgia.
  • Trump is airing radio ads in urban markets in Minnesota, Wisconsin, Michigan, North Carolina, Georgia, and Florida featuring former professional football player Herschel Walker and Georgia Democrat Vernon Jones. The spots focus on criminal justice and economic empowerment for Black Americans.
  • The Arizona Supreme Court ruled that Kanye West’s electors were invalid because they did not submit a document stating their names and political parties.

What We’re Reading

Flashback: September 9, 2016

Mike Pence released a decade of his tax filings. In 2015, Pence and his wife had a reported adjusted gross income of $113,026.

Click here to learn more.



Documenting America’s Path to Recovery: September 8, 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 expanded restaurant capacity in Pennsylvania, nursing home visitation in Delaware, school reopenings, and much more. Want to know what happened Friday? Click here.

The next 24 hours

What is changing in the next 24 hours?

  • Louisiana (divided government): Gov. John Bel Edwards (D) is expected to announce on Sept. 9 whether the state can move into the third phase of reopening.

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): Several of the state’s largest school districts reopened to in-person instruction for the 2020-2021 school year. Schools were allowed to reopen beginning Aug. 31, but many districts delayed their start until after Labor Day.
  • Delaware (Democratic trifecta): Long-term care facilities may begin submitting indoor visitation plans if they meet the following criteria: no new coronavirus cases within the last 14 days and adequate staffing and personal protective equipment.
  • Maryland (divided government): Public schools were allowed to reopen virtually. How long virtual instruction will last varies by district.
  • Pennsylvania (divided government): Gov. Tom Wolf (D) announced restaurants will be able to increase indoor capacity to 50% starting Sept. 21. Owners who want to expand capacity will have to fill out a self-certification form stating their compliance with state guidelines. Restaurants will also have to stop alcohol sales by 10 p.m. starting Sept. 21.
  • Texas (Republican trifecta): On Monday, Sept. 7, Gov. Greg Abbott (R) signed an executive order extending the statewide COVID-19 disaster declaration. Abbott first enacted the declaration in March and has subsequently extended it several times. The disaster declaration allows the state to access and direct resources to combat the pandemic.

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:

  • Four states (N.M., R.I., Vt., W.V.) have a state-ordered school closure
  • Two states (Calif., Hawaii) have a state-ordered regional school closure
  • Three states (Del., N.C., Va.) are open for hybrid or remote instruction only
  • Five states (Ark., Fla., Iowa, Mo., Texas) have state-ordered in-person instruction
  • Thirty-six states have reopenings that vary by school or district

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 Sept. 3, two Pennsylvania couples filed suit in the U.S. District Court for the Middle District of Pennsylvania against Gov. Tom Wolf (D), challenging Wolf’s COVID-19 contact tracing program and mask mandate. Pennsylvania’s mask mandate, which requires that people wear face coverings in public when they are unable to maintain a distance of six feet from others, and the contact tracing program, were both implemented through executive action. In their complaint, the plaintiffs object to “Wolf’s unilateral exercise of power,” alleging he “has assumed the power to lord over the lives of Pennsylvanians like a king, mandating restrictions that deprive citizens, including plaintiffs, of their fundamental liberties.” The plaintiffs allege that Wolf’s actions violate their First, Fourth, and Fourteenth Amendment rights. Plaintiffs also allege Wolf’s actions violate the Guarantee Clause of the U.S. Constitution, which requires the federal government to guarantee that the states maintain a republican form of government. Wolf’s office has not commented publicly on the lawsuit. The case is assigned to Chief Judge John E. Jones III, an appointee of President George W. Bush (R).


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