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Economy and Society: Shareholder group study argues ESG fund labels misleading

Economy and Society is Ballotpedia’s weekly review of the developments in corporate activism; corporate political engagement; and the Environmental, Social, and Corporate Governance (ESG) trends and events that characterize the growing intersection between business and politics.

ESG Developments This Week

In Washington, D.C.

ESG advocacy group releases its recommendations for federal regulatory action

Ceres, one of the largest nonprofit groups advocating for capital markets to take an active role in urging businesses to be what it deems more environmentally conscious, released its list of recommendations for federal agencies. The organization noted that the members of its investor networkto whom Ceres offers investment direction and guidance on climate change and other mattershave some $32 trillion in assets under management. Roll Call provided the details:

“Ceres last week publicly disclosed its recommendations to the Federal Reserve, the Federal Deposit Insurance Corporation, the Office of the Comptroller of the Currency and the U.S. Treasury Department, calling on the regulators to incorporate climate risk into their rule-making and policy frameworks….

Ceres urged the Fed to issue supervision letters on climate risk to banks and bank holding companies to acknowledge that climate change poses risks to the financial system and provide guidance to financial institutions on identifying and monitoring the risks. The group also calls on the U.S. central bank to review the largest bank holding companies to gain an understanding of how they are identifying and managing climate risk and coordinate a study with the OCC and FDIC, as well as New York and Massachusetts’ state financial regulators.

“These recommendations build on that momentum by identifying practical and familiar steps that these agencies can take within their existing authorities to make good on their commitments to take action on climate financial risk,” said Steven M. Rothstein, managing director of the Ceres Accelerator for Sustainable Capital Markets.

Federal Reserve Chairman Jerome Powell told the Senate Banking Committee this week that it is “very likely” that the agency will use “climate stress scenarios” to ensure financial institutions understand the potential material risks from global warming. 

That said, Ceres stressed the need for the agencies to work together and pursue interagency initiatives to optimize the regulatory response to climate change. 

“Short-term actions by each of the Financial Stability Oversight Council members individually is critical to address the risks to the financial system from climate change,” the organization said. 

“While individual agency actions are important, collective action can sometimes send a more powerful and consistent message to the financial services industry. The benefits from the government acting on a joint or interagency basis are clear. Such joint actions avoid conflicting or duplicative messages which create burden for industry and they can result in a more efficient allocation of resources by the agencies.””

Shareholder advocacy group’s ESG study reveals ESG fund labels confusing, misleading 

As You Sow, a nonprofit organization that aims, according to its website, to “promote environmental and social corporate responsibility through shareholder advocacy, coalition building, and innovative legal strategies,” recently shared with the Securities and Exchange Commission (SEC) a study that it sponsored and that purportedly shows that the ESG landscape at present is confusing, misleading, and in need of federal regulatory action. According to Bloomberg Green:

“Investing in ESG funds is like trying to navigate “the Wild West” as both regulations and enforcement fall short, according to Andrew Behar, the chief executive of As You Sow.

The shareholder advocacy group spearheaded a study that found 60 of 94 ESG funds failed to adhere closely to the principles of environmental, social and governance investing. The findings, which have been shared with the U.S. Securities and Exchange Commission, indicate that “one can’t tell the difference between a prospectus for true ESG offerings vs. greenwashing mutual funds and ETFs,” the nonprofit said Tuesday.

The researchers — a group of graduate students from University of California, San Diego — used data-analytic tools to establish that language in many funds’ prospectuses lacked clarity when disclosing why they held stakes in companies involved in areas such as fossil fuels, deforestation, firearms and weapons, prisons and tobacco. 

“We see funds with ESG in their names getting F’s on our screening tools because they hold dozens of fossil-fuel extraction companies and coal-fired utilities,” Behar said….

Representatives from As You Sow met with the SEC last week to share their analysis and make recommendations. The SEC has previously said it’s investigating potential misconduct related to flawed sustainability claims….

As You Sow wants the SEC to require that all prospectuses be produced in a “machine-readable” format to enable easy automated comparisons of the documents’ wording. If the regulator fails to do so, “we may be forced to file a petition,” Behar said.”

SEC in Texas probes banks over disclosures on ESG-related issues

According to a report published by Reuters on January 5, the Fort Worth, Texas office of the SEC is currently investigating disclosures made by banks in the state regarding their ESG policies. The banks in question do business with the Texas state government, which has laws on the books forbidding state entities from using banks that adhere too closely to ESG principles. According to the report, the Commission is looking for discrepancies between public statements and faithful compliance with state laws. As the wire reported: 

“The inquiry appears to relate to two Texas laws, enacted last year, banning state entities from working with companies that discriminate against firearms or fossil fuel companies, the sources said.

Amid pressure from investors and employees, banks have become active on environmental, social, and governance (ESG) issues, eschewing gunmakers, backing racial equity projects and pledging to phase out fossil fuel lending, sparking a backlash from Republican lawmakers who worry sectors of the economy may lose access to credit.

The SEC’s new Democratic leadership, meanwhile, has pledged to crack down on public companies that may be inflating their ESG credentials to attract investors and burnish their reputation, or which may be underplaying related risks.

In recent weeks, enforcement staff in the SEC’s Fort Worth, Texas, office sent letters to a number of banks that have acted as underwriters in the Republican-led state, asking them to substantiate ESG policies they have outlined in public disclosures, the same people said.

The SEC seems to be scrutinizing potential conflicts between what the underwriters have told investors versus Texas regulators about their policies on doing business with gunmakers and fossil fuel companies, the sources said….

Lenders who want to underwrite offerings of securities issued by Texas state and local governments have had to sign public certifications saying they do not “boycott” energy companies or have a practice, policy, or directive that discriminates against a firearm entity or firearm trade association.

Thirty-six companies have filed such certifications, according to the Municipal Advisory Council of Texas, a trade association which compiles and publishes the documents.

Among them are Barclays (BARC.L), Citigroup Inc (C.N), RBC Capital Markets (RY.TO), TD Securities (TD.TO), UBS Financial Services (UBSG.S) and Wells Fargo, according to certifications filed between September and November.

These lenders have pledged to cut their carbon footprints and achieve net zero greenhouse gas emissions by 2050, which will affect the companies they finance.”

On Wall Street and in the private sector

Survey shows Americans think workers, not climate, the number one ESG issue 

Just Capital, a nonprofit advocacy group that aims to influence capital markets, recently released the results of a survey it conducted assessing the issues that the American people think are in most desperate need of fixing in business. According to the advocacy group, the issue that most concerns peopleand that thus deserves a higher place in the ESG hierarchy of issuesis not climate change or zero-carbon transitioning, but the worker. CNBC reported the survey as follows:

“In the annual ranking of top U.S. companies on ESG metrics conducted by research nonprofit Just Capital, there were some major moves in 2022, both up and down the list. Meta Platforms dropped 691 spots due to concerns about spread of misinformation on Facebook and Instagram’s negative social influence, while Uber Technologies rose 825 places, to No. 41. Both were unusual circumstances, but Uber’s ranking may say more about the most important issue to the American public when it comes to environmental, social and governance issues: treatment of workers.

It is the No. 1 issue, but that’s not revealed in the fact that Uber vaulted into the JUST 100 — it’s because Just Capital took the unusual step of denying Uber the “seal” that the top 100 companies usually get.

Uber, along with Lyft and DoorDash — though neither made the top 100 overall like Uber — were placed “under review” by the ESG research firm in this year’s rankings because the data does not capture the fact that a significant proportion of their workforce is classified as independent contractors….

Martin Whittaker, CEO of Just Capital, says when the firm sets out to create the annual list of America’s “most just” companies, it wants to get it “as right as you can,” and it’s not confident that ESG is there yet with the contingent workforce model.

“When you have a whole business model built around contingent workers it’s hard to get data,” Whittaker said. “The full-time employees I’m sure are paid very well and get great benefits. And you get data on that. But we know its whole business model is based on a different relationship with workers, and we didn’t feel like we had enough data to accurately reflect that story. It’s the same for Doordash and Lyft,” he said. “We felt like it is an emerging systemic story and we didn’t feel like we really had a sufficiently strong handle on what it meant and how to measure it.”

Just Capital knows for sure that workers are the No. 1 ESG issue to the American public because each year it polls the public to create the weightings for its annual ranking, and for 2022′s list, worker issues were weighted at nearly 40%, compared to 10% for climate. A fair, living wage was the No. 1 issue overall. The second-highest weighted area, Communities (20%), is partially a workforce metric because it includes job creation.”

In the spotlight

Crypto vs. ESG, again

A longstanding perceived battle between supporters of cryptocurrencies and advocates of ESG and sustainability has erupted in fighting once again, this time on the battlefield of Wikipedia. At present, Wikipedia accepts donations made in a handful of cryptocurrencies, most notably, Bitcoin. Because of the energy used in the cryptocurrency mining process, some ESG advocates consider cryptocurrency, in their view, environmentally damaging. As a result, Wikipedia, which has promised to be environmentally sustainable, is being pressured by its own contributors to stop accepting crypto donations:

“Wikipedia is facing increasing internal pressure to stop accepting crypto donations. The site which was launched in 2001 has grown throughout the years to become the number 1 encyclopedia site on the internet, all the while remaining a free resource for anyone with access to the internet, and the reason it has been able to do this was because it relies on donations.

Wikipedia currently accepts donations in a number of cryptocurrencies, which began in 2014, but as these digital assets have grown and come under increased scrutiny due to its environmental impacts, there have been calls for it to discontinue crypto donations which “may not align with the foundation’s commitment to environmental sustainability.”…

The impact of bitcoin and other crypto mining on the environment remains a big debate to this day. It is estimated that crypto mining is the 33rd largest consumer of power in the world, ahead of a lot of countries. This has caused the rally against mining activities that are said to be damaging to the environment….

The proposal…calls into question the proof-of-work mechanism utilized by bitcoin and other cryptocurrencies which is a computationally expensive process and Wikipedia accepting crypto donations adds to the environmental burden levied by these transactions.

[The] proposal has sparked discussions across the Wiki community. Some have cosigned the message being passed by the contributor, although the debates around crypto donations continue.”



Robe & Gavel: SCOTUS begins second week of January sitting

Welcome to the Jan. 18 edition of Robe & Gavel, Ballotpedia’s newsletter about the Supreme Court of the United States (SCOTUS) and other judicial happenings around the U.S.

This week, we commemorate the life and acts of Dr. Martin Luther King Jr. by reading his speeches, sermons, and engaging in acts of service. We thank you for spending some of your time with us as we gavel in and catch up on the federal judiciary.

Follow Ballotpedia on Twitter or subscribe to the Daily Brew for the latest news and analysis.

We #SCOTUS and you can, too!

Noteworthy court announcements

Court schedules oral arguments in COVID vaccine-related emergency appeals

On Jan. 13, the court issued per curiam opinions on both of the Biden administration’s COVID-19-related vaccine policies that came to the court on emergency appeals on Dec. 22. SCOTUS blocked enforcement of one mandate and allowed enforcement of the other while litigation continues in lower courts. 

In National Federation of Independent Business v. Department of Labor (consolidated with Ohio v. Department of Labor), the court blocked the Occupational Safety and Health Administration’s (OSHA) COVID-19 vaccination-or-test mandate for businesses with more than 100 employees. Justices Stephen Breyer, Sonia Sotomayor, and Elena Kagan dissented from the order.

In Biden v. Missouri (consolidated with Becerra v. Louisiana), the court allowed the administration’s mandate requiring health care employees who work in Medicare and Medicaid-funded programs to go into effect. Justices Clarence Thomas, Samuel Alito, Neil Gorsuch, and Amy Coney Barrett dissented.

Grants

SCOTUS has accepted eight new cases to its merits docket since our Jan. 10 issue. 

Click the links below to learn more about these cases:

  • United States v. Washington concerns state workers’ compensation laws and intergovernmental immunity. 
  • Siegel v. Fitzgerald involves the constitutionality of a law imposing different fees on Chapter 11 debtors based on the district in which the bankruptcy is filed. 
  • Kemp v. United States concerns the Federal Rule of Civil Procedure governing court procedure in civil cases. 
  • George v. McDonough involves the administrative state and veteran’s benefits claims.
  • Kennedy v. Bremerton School District involves First Amendment protections of religious expression.
  • Vega v. Tekoh involves whether a plaintiff may sue a police officer for violating their federal civil rights based on the officer’s failure to provide Miranda warnings.
  • Nance v. Ward concerns the procedure by which an inmate may challenge the state’s method of execution for their sentencing.
  • Shoop v. Twyford concerns evidentiary determinations for habeas petitions. 

To date, the court has agreed to hear 59 cases for the 2021-2022 term. SCOTUS dismissed four cases after accepting them and removed one case from the argument calendar after both parties agreed to settle. Eleven cases have yet to be scheduled for arguments.

Arguments

The Supreme Court will hear arguments in four cases this week. Click here to read more about SCOTUS’ current term.

Click the links below to learn more about these cases: 

Jan. 18

Jan. 19

In its October 2020 term, SCOTUS heard arguments in 62 cases. Click here to read more about SCOTUS’ previous term.

Opinions

SCOTUS issued one opinion since our Jan. 10 edition. The court has issued rulings in six cases so far this term, two of which were decided without argument. 

Click the links below to read more about the case:

Jan. 13

Babcock v. Kijakazi originated from the U.S. Court of Appeals for the 6th Circuit and was argued before the court on Oct. 13, 2021.

The case: David Babcock was a dual-status technician with the National Guard who participated in the Civil Service Retirement System (“CSRS”) and paid Social Security taxes on qualifying income. Upon retiring, Babcock applied for Social Security retirement benefits. The Social Security Administration (SSA) granted Babcock’s application but reduced his benefits since he also received CSRS pension payments. Babcock asked the SSA to reconsider, citing the Social Security Act uniformed services exception and arguing that his pension plan was covered. The SSA did not change its determination and on appeal, the determination was upheld. Babcock sought judicial review with the U.S. District Court for the Western District of Michigan. The court ruled that his uniformed service did not qualify under the exception. On appeal, the 6th Circuit affirmed the decision. Click here to learn more about the case’s background.

The outcome: The U.S. Supreme Court court affirmed the 6th Circuit in an 8-1 ruling, holding that Babcock’s civil-service pension payments were not based on his service as a member of a uniformed service. Justice Barrett delivered the majority opinion of the court. Justice Gorsuch filed a dissenting opinion.

Between 2007 and 2020, SCOTUS issued opinions in 1,062 cases, averaging between 70 and 90 decided cases per year.

Upcoming SCOTUS dates

Here are the court’s upcoming dates of interest:

  • Jan. 18: 
    • SCOTUS will hear arguments in two cases.
    • SCOTUS will release orders.
  • Jan. 19: SCOTUS will hear arguments in two cases.
  • Jan. 21: SCOTUS will conference. A conference is a private meeting of the justices. 
  • Jan. 24: SCOTUS will release orders.

Federal court action

Nominations

President Joe Biden (D) has announced no new Article III nominees since our Jan. 10 edition.

The president has announced 73 Article III judicial nominations since taking office on Jan. 20, 2021. For more information on the president’s judicial nominees, click here.

Committee action

The Senate Judiciary Committee has reported five new nominees out of committee since our Jan. 10 edition.

Confirmations

The Senate has confirmed one new nominee since our Jan. 10 issue.

Vacancies

The federal judiciary currently has 78 vacancies, 76 of which are for lifetime Article III judgeships. As of publication, there were 26 pending nominations.

According to the Administrative Office of U.S. Courts, there were 34 upcoming vacancies in the federal judiciary, where judges have announced their intention to leave active judicial status.

For more information on judicial vacancies during the Biden administration, click here.

Note: This chart is updated at the start of each month with the latest vacancy data from U.S. Courts

Do you love judicial nomination, confirmation, and vacancy information? We figured you might. Our monthly Federal Vacancy Count monitors all the faces and places moving in, moving out, and moving on in the federal judiciary. Click here for our most current count.

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, keep an eye on our list for updates on federal judicial nominations.

Spotlight: Presidential nominations to federal courts

Hello, gentle readers! Welcome back to our journey through federal judicial history. Today, we make a stop in the Gilded Age to highlight President Benjamin Harrison’s (R) judicial nominees from 1889 to 1893.

During his time in office, the U.S. Senate confirmed 43 of President Harrison’s judicial nominees. The Senate did not vote on two of Harrison’s nominees.

Among the most notable appointees were four Supreme Court Justices:

By the end of his first year in office, two of President Harrison’s nominees had been confirmed. One nominee was confirmed to a U.S. district court and one was confirmed to the U.S. Supreme Court.

Looking ahead

We’ll be back next month on Feb. 7, 2022, with a new edition of Robe & Gavel. Until then, gaveling out! 

Contributions

Kate Carsella compiled and edited this newsletter, with contributions from Brittony Maag and Jace Lington.



Checks and Balances: Courts weigh in on vaccine mandates

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 the latest judicial actions on the Biden administration’s vaccine mandates; a circuit split on the constitutionality of removal protections for certain administrative law judges that could prompt the U.S. Supreme Court (SCOTUS) to weigh in; new federal legislation seeking to codify Chevron deference; and the Office of Personnel Management’s (OPM) proposed rescission of Trump-era policies regarding poor-performing federal employees. 

At the state level, we take a look at opposition from state attorneys general to the Biden administration’s vaccine and mask requirements for federal Head Start programs.

We also highlight the release of the Biden administration’s Fall 2021 Unified Agenda of Federal Regulatory and Deregulatory Actions. As always, we wrap up with our Regulatory Tally, which features information about the 2,094 proposed rules and 3,257 final rules added to the Federal Register in 2021 and OIRA’s regulatory review activity.

In Washington

SCOTUS, courts of appeal issue rulings on vaccine mandates

What’s the story? 

The U.S. Supreme Court on January 13, 2022, blocked the Biden administration’s coronavirus (COVID-19) vaccination requirements for certain private businesses while upholding the vaccine mandate for healthcare workers. The vaccine requirements for federal contractors remained blocked nationwide as of January 14, 2022.

Private businesses: The U.S. Supreme Court ruled 6-3 to block enforcement of the Occupational Safety and Health Administration’s (OSHA) regulation implementing a vaccine requirement for workers at businesses with 100 or more employees. In the per curiam opinion, the majority justices argued that the OSHA secretary lacked the authority to issue the requirement, describing the rule as “a significant encroachment into the lives—and health—of a vast number of employees.” 

In his concurrence, Justice Gorsuch argued in part that the rule failed the test of the major questions doctrine, which requires Congress to speak clearly when it grants an agency authority to regulate on economic or politically significant matters. “The agency claims the power to force 84 million Americans to receive a vaccine or undergo regular testing,” wrote Gorsuch. “By any measure, that is a claim of power to resolve a question of vast national significance. Yet Congress has nowhere clearly assigned so much power to OSHA.”

Healthcare workers: The U.S. Supreme Court ruled 5-4 to uphold the Centers for Medicare and Medicaid’s (CMS) vaccine requirement for healthcare workers at facilities that receive Medicaid or Medicare funds. In the per curiam opinion, the majority justices argued that “Congress has authorized the Secretary to impose conditions on the receipt of Medicaid and Medicare funds that ‘the Secretary finds necessary in the interest of the health and safety of individuals who are furnished services.’” 

Federal contractors: The United States Court of Appeals for the Eleventh Circuit on December 17, 2021, upheld a nationwide injunction blocking enforcement of the Biden administration’s vaccine requirement for federal contractors. A three-judge panel of the United States Court of Appeals for the Sixth Circuit on January 7, 2022, ruled 2-1 to uphold a similar injunction blocking the requirement for federal contractors in Kentucky, Ohio, and Tennessee. “If the president can order medical interventions in the name of reducing absenteeism,” questioned the majority, “what is the logical stopping point of that power?”

Want to go deeper?

Circuit split could prompt SCOTUS to hear challenge to ALJ removal protections

What’s the story? 

The United States Court of Appeals for the Fifth Circuit on December 13, 2021, issued an en banc opinion in Cochran v. U.S. Securities & Exchange Commission (SEC) et al., holding 9-7 that federal law does not prohibit federal district courts from concurrently hearing constitutional challenges to the SEC’s administrative law judges (ALJs) in cases where the agency has yet to issue a final adjudicative order. The court’s decision creates a circuit split with six other courts of appeal that have already considered such challenges, which could prompt the U.S. Supreme Court to take up the case.

Cochran has argued that the removal protections of the SEC ALJ assigned to her case unconstitutionally insulate the ALJ from removal by the president. The district court ruled that, according to the Securities Exchange Act of 1934, Cochran must first raise her constitutional challenge during agency proceedings before appealing the final agency order to the federal courts. A panel of the Fifth Circuit agreed with the district court. The full Fifth Circuit heard the case and disagreed, finding in part that Cochran’s constitutional concern “has absolutely nothing whatsoever to do with a final order, and therefore her claim falls outside of” the statutory limit on the district court’s subject matter jurisdiction.

“In Free Enterprise Fund, the Supreme Court rejected the precise argument the SEC makes here—that the Exchange Act divests district courts of jurisdiction over removal power challenges,” wrote Judge Catharina Haynes in the opinion.

Judge Gregg Costa argued in the dissent, “Before today, every court of appeals to consider the question has answered that a person facing an SEC enforcement action may not mount a collateral attack against the agency proceeding in federal district court.” The majority, he further argued, “turns constitutional avoidance on its head by making separation-of-powers claims a first rather than last resort in resolving cases.”

The U.S. Supreme Court in 2018 ruled in a constitutional challenge to the appointment of the SEC’s ALJs. The court found in Lucia v. SEC that the SEC’s ALJs are Officers of the United States subject to the Appointments Clause.

Want to go deeper?

Legislation seeks to codify Chevron deference

What’s the story?

U.S. Representative Pramila Jayapal (D-Wash.) on December 1, 2021, introduced the Stop Corporate Capture Act, which aims to enact broad changes to the regulatory process, including codification of the Chevron deference doctrine.

Chevron deference compels judges to defer to reasonable agency interpretations of statutes they are tasked with administering. The proposed legislation would codify Chevron deference, despite continued uncertainty among U.S. Supreme Court justices regarding the doctrine’s scope. “[A]ll nine justices have at least once signed an opinion explicitly holding that Chevron should not apply in a situation where the administrative law textbooks would previously have said that it must apply,” concluded administrative law scholar Michael Kagan in 2017.

In addition to codifying Chevron deference into law, the Stop Corporate Capture Act proposes instituting new requirements for material submitted during public comment periods, including new disclosure standards for scientific studies and new penalties for corporations found to have submitted “materially false, fictitious, or fraudulent” information. The legislation would also require agencies to prioritize regulations that offer the most benefits to the public, regardless of costs, and would allow agencies to reinstate rules repealed under the Congressional Review Act, among other provisions. 

Want to go deeper?

OPM moves to rescind Trump-era policy on poor-performing federal employees

What’s the story? 

The Office of Personnel Management (OPM) on January 4, 2022, issued a proposed rule aimed at rescinding regulations issued under the Trump administration regarding poor-performing federal employees.

OPM issued the rules in November 2020 pursuant to President Donald Trump’s (R) Executive Order 13839, which aimed to streamline the discipline and dismissal processes for poor-performing federal employees. The regulations directed agency approaches to employee probationary and improvement periods, barred agencies from entering into settlement agreements with employees, and shortened the time frame for employees to respond to allegations of misconduct or poor performance.

President Joe Biden (D) on January 22, 2021, issued Executive Order 14003, rescinding E.O. 13839 and directing OPM to repeal the Trump-era regulations. In its proposed rule to implement Biden’s directive, OPM argued that the rules “removed previous flexibilities enjoyed by agencies in how to address performance issues with their employees.” The proposed rule is open for public comment through February 3, 2022.

Want to go deeper?

In the states

States challenge coronavirus (COVID-19) requirements for federal Head Start programs

What’s the story? 

Attorneys general in Florida, Texas, and Louisiana have opposed the Biden administration’s coronavirus (COVID-19)-related requirements for federal Head Start programs. The Department of Health and Human Services (HHS) on November 30, 2021, issued an interim final rule mandating vaccination for employees and contractors of federal Head Start programs and requiring masks for students ages two and older.

Texas Attorney General Ken Paxton and Lubbock Independent School District on December 10, 2021, filed a preliminary injunction to block enforcement of the rule. Louisiana Attorney General Jeff Landry followed suit on Dec. 21, filing a lawsuit arguing in part that the Head Start requirements exceed the authority of the executive branch. Attorneys general from 23 other states joined Landry’s lawsuit.

Judge James Wesley Hendrix of the United States District Court for the Northern District of Texas on December 31, 2021, blocked enforcement of the rule in Texas, arguing in part that Congress did not delegate authority to HHS to issue vaccine or mask requirements for Head Start programs. The next day, Judge Terry Doughty of the United States District Court for the Western District of Louisiana blocked enforcement of the rule in Louisiana and 23 other states.

“​​This Court has no hesitation in finding that the Head Start Mandate is a decision of vast economic significance and that Congress has not clearly spoken to give Agency Defendants the authority to impose it,” wrote Doughty in the order.

Want to go deeper?

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Biden administration releases Fall 2021 Unified Agenda

The Biden administration in December released the Fall 2021 Unified Agenda of Federal Regulatory and Deregulatory Actions—a semiannual publication of recently completed, ongoing, and anticipated federal regulations. The Unified Agenda combines regulatory agendas and other required reports and information from approximately 60 departments, agencies, and commissions of the federal government.

“The regulatory plans and agendas submitted by agencies and included here offer blueprints for how the Administration plans to continue delivering on the President’s agenda as we build back better,” stated the Office of Information and Regulatory Affairs in the document’s introduction. “We are proud to shine a light on the regulatory agenda as a way to share with the public how the themes of equity, prosperity and public health cut across everything we do to improve the lives of the American people.”

The Fall 2021 Unified Agenda identifies 68 federal agencies tasked with 3,777 rules in the active, just-completed, and long-term stages, according to an analysis in Forbes

Want to go deeper

Regulatory tally: 2021 in review

Federal Register

Office of Information and Regulatory Affairs (OIRA)

OIRA’s 2021 regulatory review activity included the following actions:

  • Review of 502 significant regulatory actions. 
  • Twenty-five rules approved without changes; recommended changes to 383 proposed rules; 90 rules withdrawn from the review process; four rules subject to a statutory or judicial deadline.
  • As of January 3, 2022, OIRA’s website listed 72 regulatory actions under review.
  • Want to go deeper? 


Subscribe to The Heart of the Primaries to keep up to date with 2022 elections

Welcome to the Tuesday, January 18, Brew. 

By: Samuel Wonacott

Here’s what’s in store for you as you start your day:

  1. Subscribe to The Heart of the Primaries to stay abreast of the latest key congressional and state-level primaries in 2022 
  2. Austin initiative to decriminalize marijuana and prohibit no-knock warrants submitted more than 20,000 valid signatures
  3. New Hampshire Secretary of State retirement triggers triplex status change

Subscribe to The Heart of the Primaries to stay abreast of the latest key congressional and state-level primaries in 2022 

Voters will decide thousands of races, including all 435 members of the U.S. House of Representatives and 34 seats in the U.S. Senate. That’s in addition to the roughly 6,000 state legislative candidates that will appear on ballots across the country, or all the races for state executive positions, county and local offices, and school board seats

Sounds like a lot, right? Don’t worry—we’ve got you covered. 

Our Heart of the Primaries newsletter is the key to keeping up with what promises to be a frenetic primary season. First launched in January 2018, Heart of the Primaries takes you to the front lines of primary battles, where readers witness intraparty conflict as Democrats and Republicans compete to make it to the general election. We cover key congressional, legislative, and executive races from state to state. We also look at the policy differences between candidates, which donor groups are behind which candidates (and why!), polling, and more. Two versions are published each week: one for Democratic primaries and one for Republican primaries.

Here’s a summary of stories from our most recent Republican and Democratic editions:

  • Chicago Ald. Dowell drops SoS bid to run in 1st District primary
    • On Jan. 5, Chicago Ald. Pat Dowell (D) announced she would end her bid for Illinois secretary of state and instead run in the Democratic primary for the 1st Congressional District. Dowell made the announcement following 1st District Rep. Bobby Rush’s (D) announcement that he would not seek re-election. The Chicago Sun-Times’ Lynn Sweet said Dowell’s political and fundraising campaign operation would give her a strong position in the primary. 
  • Clay Aiken launches second U.S. House bid in N.C.
    • Clay Aiken, an entertainer and former American Idol contestant, announced his bid for North Carolina’s 6th Congressional District on Jan. 10. In 2014, Aiken won the Democratic primary in North Carolina’s 2nd Congressional District. Incumbent Renee Ellmers (R) defeated him in the general election 59% to 41%. 
  • Multiple Tennessee counties switch to partisan school board elections
    • At least eight of the 10 largest counties in Tennessee will hold partisan primary elections for school board in 2022. Gov. Bill Lee (R) signed a bill in November giving county parties the ability to hold partisan primary elections. Previously, school board elections were nonpartisan with candidates prohibited from identifying or campaigning with any political party. 
  • State Sen. Coram challenges U.S. Rep. Boebert in Colorado
    • State Sen. Don Coram announced last week he is challenging Rep. Lauren Boebert in the Republican primary for Colorado’s 3rd Congressional District. Coram said, “I’m looking at our state and our nation and I’m very concerned that the 10% on the right and the 10% on the left are making all the noise and getting all the attention, and the 80% in the middle are totally ignored.” Boeber called Coram a “self-serving, super-woke social liberal who would have a far better chance of winning the Democrat nomination.”

Our next editions come out Jan. 20. Click the link below to subscribe and follow along!

Keep reading

Austin initiative to decriminalize marijuana and prohibit no-knock warrants qualifies for the May 7 ballot 

On Jan. 10, the Austin City Clerk, in Austin, Texas, announced that an initiative to decriminalize marijuana and prohibit no-knock warrants had qualified for the ballot. Proponents submitted over 20,000 valid signatures, meeting the required number to appear on the ballot. 

The city council has 10 days to adopt the proposed charter amendment outright or vote to send it to the May 7 ballot.

Here is a summary of the initiative:

  • Chapter 1: The proposed initiative would prohibit Austin police from issuing any citations or making any arrests for misdemeanor marijuana possession offenses, so long as the offenses are not involved in the investigation of a narcotics-related case designated as a high priority or a violent felony case. Austin police officers would be able to seize marijuana if they have probable cause to believe that an individual possesses it, but they must write up a full report and are not permitted to detain the individual if marijuana possession is the sole charge. The initiative would also prohibit police officers from issuing citations for possession of drug residue or paraphernalia.
  • Chapter 2: The proposed initiative would prohibit Austin police from requesting, executing, or participating in a no-knock search warrant. The initiative would define a no-knock search warrant as “any search warrant that does not require the officer to knock and announce their presence and wait at least 15 seconds prior to execution.” 

In 2020, voters approved 20 local police-related ballot measures in 10 cities and four counties within seven states. Two were overturned after the election. In 2021, voters approved seven of 12 local police-related ballot measures in 10 cities and one county within nine states. Among the approved measures was a ban on no-knock warrants in Pittsburgh that won 81.16% of the vote.

In 2021, we covered 202 local measures on the ballot for voters in the top 100 largest cities and state capitals in the U.S.

Keep reading 

New Hampshire Secretary of State retirement triggers triplex status change

On Jan. 10, 2022, New Hampshire Secretary of State William Gardner (D), the longest-serving secretary of state in U.S. history, retired. The New Hampshire legislature first elected Gardner to the position in 1976. 

Deputy Secretary of State David Scanlan (R) was sworn in after Gardner resigned. According to the New Hampshire Constitution, the deputy secretary of state replaces the secretary until a new secretary is appointed. Scanlan will serve the remainder of Gardner’s term, which ends in December 2022. 

Scanlan’s swearing-in created a Republican triplex in New Hampshire, meaning that Republicans control the executive offices of governor, attorney general and secretary of state.

 In New Hampshire, the joint session of the state legislature chooses the secretary of state.

In 2022, 27 states are holding an election for secretary of state. Click here to read more about those elections. 

There are 21 Democratic secretaries of state and 26 Republican secretaries of state. The position does not exist in Alaska, Hawaii, or Utah. 

Keep reading



New York City legislation allowing certain noncitizens to vote becomes law

Our weekly summary of state & local news highlights New York City legislation allowing some noncitizens to vote and the Ohio Supreme Court strikes down legislative maps. Read all about it in this week’s edition of the State & Local Tap.

Ballotpedia is hiring! Click here to view our current job opportunities. Don’t see something that fits? Add your resume to our standing posting.

Ballot Measures Update

Sixty-four statewide measures have been certified for the 2022 ballot in 30 states so far. No new measures were certified for the ballot last week.

Signatures have been submitted and are pending verification for six additional initiatives in Alaska, Florida, Massachusetts, and Ohio:

States in session

Thirty-two state legislatures—Alabama, Arizona, California, Colorado, Delaware, Florida, Georgia, Idaho, Illinois, Indiana, Iowa, Kansas, Kentucky, Maine, Maryland, Massachusetts, Michigan, Mississippi, Missouri, Nebraska, New Hampshire, New Jersey, New York, Pennsylvania, Rhode Island, South Carolina, South Dakota, Tennessee, Vermont, Virginia, Washington, and West Virginia—are in regular session.

Special Elections

Twenty-six state legislative special elections have been scheduled in 13 states so far this year. Six specials have taken place already. Heading into those races, Democrats had previously controlled five of the seats, and Republicans previously controlled one.

  • In special elections between 2011 and 2021, one party (either Republicans or Democrats) saw an average net gain of four seats nationally each year.
  • An average of 57 seats were filled through special elections in each of the past six even years (2010: 30, 2012: 46, 2014: 40, 2016: 65, 2018: 99, 2020: 59).
  • An average of 85 seats were filled through special elections in each of the past six odd years (2011: 95, 2013: 84, 2015: 89, 2017:98, 2019: 77, 2021: 66).

Upcoming special elections include:

Jan. 18

Jan. 25

Feb. 8

New Hampshire Secretary of State William Gardner retires

New Hampshire Secretary of State William Gardner (D) retired on Jan. 10. 

Gardner is the longest-serving secretary of state, having held the office for 45 years. The state legislature first elected him as secretary in 1976. Before he became secretary, Gardner served as a member of the New Hampshire House of Representatives from 1973 to 1976. 

Deputy Secretary of State David Scanlan (R) assumed office as acting secretary after Gardner resigned. According to the New Hampshire Constitution, the deputy secretary of state serves as acting secretary until both houses of the state legislature choose a permanent replacement. 

Scanlan will serve the remainder of Gardner’s term, which was set to expire in December 2022. 

Scanlan’s swearing-in created a Republican triplex in New Hampshire, meaning that Republicans or Republican-appointed officials control the executive offices of governor, attorney general, and secretary of state.

New York City legislation allowing certain noncitizens to vote becomes law

On Jan. 9, 2022, New York City Mayor Eric Adams (D) allowed Int. 1867-2020 to become law without his signature. Int. 1867-2020 will allow lawful permanent residents and other noncitizens authorized to work in the United States to vote in municipal elections conducted on or after Jan. 9, 2023. According to Politico, this will allow nearly a million noncitizens to vote.

The New York City Council passed the legislation by a 33-14 vote on Dec. 9, 2021. Then-Mayor Bill de Blasio (D) said he would not veto the legislation at the time of passage. Adams became mayor on Jan. 1, 2022.

This legislation made New York City the largest city in the nation to authorize voting by noncitizens. Fifteen municipalities across the country allowed noncitizens to vote in local elections as of January 2022. Eleven were located in Maryland, two were located in Vermont, one was New York City, and the other was San Francisco, California.

Redistricting update: Courts issue rulings in North Carolina and Ohio redistricting lawsuits

North Carolina

On Jan. 11, a three-judge panel on the Wake County Superior Court in North Carolina upheld congressional and state legislative maps passed by the Republican-controlled General Assembly. Plaintiffs filed a lawsuit against those maps alleging partisan and racial gerrymandering.

In the superior court ruling, the judges said that the maps were “a result of intentional, pro-Republican partisan redistricting,” but added that developing maps for partisan gain was not unconstitutional in North Carolina. The judges also ruled that plaintiffs failed to prove their claims of racial gerrymandering.

North Carolina’s primary elections were rescheduled from March 8 to May 17 and candidate filing for 2022 elections was paused as a result of this litigation. The panel also announced that candidate filing would resume on Feb. 24 and close on March 4.

The same day as the superior court’s ruling, plaintiffs filed a notice of appeal to the state supreme court, where Democrats hold a 4-3 majority.

Ohio

In Ohio, the state’s supreme court ruled that the state legislative district maps approved by the Ohio Redistricting Commission were partisan gerrymanders in violation of the state constitution. The court struck down the maps on Jan. 12 and ordered the commission to draw new lines in accordance with the constitution within 10 days. The Republican-controlled commission voted 5-2 along party lines in favor of the maps on Sept. 16, 2021.

This is the first overturned redistricting map during the 2020 redistricting cycle. After the 2010 census, Ballotpedia tracked at least 14 states that had to redraw all or parts of their legislative maps following court orders.

In its ruling, the court cited a constitutional amendment approved by Ohio voters in 2015 that created a bipartisan commission responsible for drawing state legislative maps without partisan bias. Voters approved the amendment with 71% of the vote.

The amendment also includes a proportionality requirement, which directs the commission to try to match districts with statewide vote totals over the past decade. During the redistricting process, it was determined that, since 2010, Republicans had won 54% of the statewide vote to Democrats’ 46%. The court said that the commission’s maps favored Republicans in 68% of the House districts and 70% of the Senate districts, in violation of the amendment.

Virginia, Maryland declare new emergencies to combat coronavirus 

On Jan. 10, Virginia Gov. Ralph Northam (D) issued a 30-day emergency order to expand hospital beds and increase hospital staffing in response to rising COVID-19 cases and hospitalizations. Northam previously ended the statewide COVID-19 emergency on June 30, 2021. 

Northam said, “Health care workers and hospitals are exhausted, and they are again facing increasing numbers of patients, affecting their ability to provide care.”

The order, which is scheduled to expire Feb. 11, allows the state health officer to authorize hospitals and nursing homes to add more beds and makes it easier for licensed healthcare workers in other states to practice in Virginia. 

Virginia is only the latest state to declare a new emergency in response to rising coronavirus cases—last week, on Jan. 4, Maryland Gov. Larry Hogan (R) issued a 30-day emergency to expand hospital capacity. Hogan previously ended the statewide emergency on July 1, 2021. 

As of Jan. 14, COVID-19 emergency orders have expired in 24 states and are active in 26 states.



SCOTUS rules on two Biden vaccine mandates

Our weekly summary of federal news highlights SCOTUS rulings on federal vaccine mandates and congressional redistricting in Arkansas. Read all about it in this week’s edition of the Federal Tap.

Ballotpedia is hiring! Click here to view our current job opportunities. Don’t see something that fits? Add your resume to our standing posting.

Congress is in session

Both the House and Senate are in session next week. Click here to see the full calendar for the second session of the 117th Congress.

SCOTUS is in session

The Supreme Court will hear oral arguments in four cases next week. To learn about the 2021-2022 term, click here.

Where was the president last week?

On Monday, Biden remained in Washington, D.C.

On Tuesday, Biden traveled to Atlanta, Georgia, where he paid respects at the crypts of Dr. Martin Luther King, Jr. and Coretta Scott King.

On Wednesday and Thursday, Biden remained in Washington, D.C.

On Friday, Biden traveled to his private residence in Wilmington, Delaware.

President Biden’s approval rating for the 50th week of his term was 43%, about the same as the week before. President Trump’s approval rating at the same point in his term was 39.8%, up 1.5 percentage points from the week before.

Federal Judiciary

  • 78 federal judicial vacancies
  • 26 pending nominations
  • 34 future federal judicial vacancies

Upcoming Article III Judicial Vacancies

According to the latest vacancy data from the U.S. Courts, there were 34 total announced upcoming vacancies for Article III judgeships. The earliest vacancy announcement was on Jan. 22, 2021, when U.S. District Court for the District of Maryland Judge Ellen Hollander announced she would assume senior status upon the confirmation of her successor. The most recent was on Jan. 12, 2022, when U.S. Court of Appeals for the 5th Circuit Judge Gregg Costa announced that he would retire on Aug. 5, 2022. Twenty-two vacancy effective dates have not been determined because the judge has not announced the date they will leave the bench. The next upcoming vacancy will occur on Jan. 21, 2022, when U.S. District Court for the Western District of Louisiana Judge Elizabeth Foote assumes senior status. 

For historical comparison, on Jan. 16, 2021, there were 49 federal judicial vacancies and five upcoming vacancies in the federal judiciary reported by the U.S. Courts.

Redistricting update: Arkansas’ congressional district map goes into effect

On Jan. 14, the two state statutes establishing new district lines for Arkansas’ four congressional districts went into effect.

Under the new maps, two of the state’s counties will be split between multiple congressional districts: Sebastian County, which is split in two, and Pulaski County—the state’s most populous—split between three districts.

Opponents of the maps said the division of Pulaski County, where less than 50% of the population identifies as white alone, was conducted along partisan and racial lines. Supporters of the proposal said the county’s size and location in the center of the state necessitated its split so as to lower the total number of counties being split elsewhere.

Legislators voted in favor of these maps on Oct. 7, 2021, sending them to Gov. Asa Hutchinson (R) for final approval. On Oct. 13, Hutchinson announced that he would not sign the maps into law, questioning the splitting of Pulaski County, and setting a 90-day period before their effective date. He said he chose not to sign the bills in order to “enable those who wish to challenge the redistricting plan in court to do so.”

No court challenges have been filed against the congressional map plans as of Jan. 13. One group, Arkansas for a Unified Natural State, announced last fall that they would gather signatures in an attempt to place the two congressional map plans on the 2022 ballot as veto referendums. As of Jan. 13, it was unclear whether the group had submitted signatures. The deadline to submit the required 53,491 valid signatures for both statutes is Jan. 15, 2022.

Supreme Court rules on two Biden vaccine mandates

On Jan. 13, the U.S. Supreme Court issued rulings on two of President Joe Biden’s (D) vaccine mandates, blocking the mandate that would have applied to companies with more than 100 employees and upholding the mandate that applies to healthcare workers in facilities that participate in the Medicare or Medicaid programs. The court heard oral arguments related to the case on Jan. 7.

The court blocked the vaccine mandate for companies with more than 100 employees in a 6-3 decision, with Justices Stephen Breyer, Elena Kagan, and Sonia Sotomayor dissenting. The Occupational Safety and Health Administration (OSHA) originally issued the rule as an emergency regulation on Nov. 5, 2021. On the same day the rule was released, four multistate lawsuits were filed challenging the rule. The Fifth Circuit stayed the rule in Texas v. U.S. Department of Labor, but the Sixth Circuit reversed the stay on Dec. 17, 2021.

The court upheld the vaccine mandate for healthcare workers in facilities that participate in the Medicare or Medicaid programs in a 5-4 decision, with Justices Samuel Alito, Amy Coney Barrett, Neil Gorsuch, and Clarence Thomas dissenting. The Centers for Medicare & Medicaid Services (CMS) issued the requirement on Nov. 4, 2021. Two multistate lawsuits were filed against the rule on Nov. 10 and Nov. 15. In Louisiana v. Becerra, U.S. District Court Judge Terry A. Doughty had previously issued a nationwide injunction on the rule on Nov. 30.

SCOTUS begins January sitting

The Supreme Court of the United States (SCOTUS) began its new argument session of the 2021-2022 term on Jan. 10. The court is hearing arguments in person and providing audio livestreams of arguments.

Justice Sonia Sotomayor participated remotely from her office as a precaution related to the COVID-19 pandemic.

This week, SCOTUS heard arguments in four cases. Click the links below to learn more about these cases:

Jan. 10

Jan. 11

Jan. 12

Next week, SCOTUS will hear arguments in four cases, beginning Jan. 18.

To date, the court has agreed to hear 59 cases this term. Four cases were dismissed, and one case was removed from the argument calendar. Eleven cases have not yet been scheduled for argument.



ICYMI: Top stories of the week

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New Mexico completes state legislative redistricting

New Mexico Gov. Michelle Lujan Grisham (D) signed the state’s new Senate district map into law on Jan. 6. The map will take effect for New Mexico’s 2022 elections. New Mexico was the 28th state to complete legislative redistricting after the 2020 census.

Read more

Six of 11 wave elections in the U.S. House took place during a president’s first midterm election

According to our definition, a U.S. House election cycle qualifies as a wave election if the president’s party loses at least 48 seats. Between 1918 and 2016, 11 wave elections took place in the U.S. House. Six of these waves occurred during a president’s first midterm election.

Read more

36 states hold two or more top-ballot statewide elections in 2022

In 2022, 36 states are holding elections for two or more top-ballot statewide offices. We define those offices to include: U.S. Senate, governor, lieutenant governor, attorney general, and secretary of state. Twenty-six states are holding elections for governor and a U.S. Senator.

Read more

California voters decided 46 local ballot measures last year

California voters decided 46 local ballot measures on seven different election dates and ultimately approved 35 (76.1%) of them in 2021. Altogether, there were 57% fewer local measures in California last year than the average number of measures during the last three odd-year election cycles.

Read more

There were 173 vacancies in state legislatures in 2021

Ballotpedia tracked 173 state legislative vacancies across 43 states in 2021. As of Jan. 6, 2022, 130 of those vacancies have been filled. Of the 43 remaining, 24 have special elections scheduled for sometime in 2022 and 19 are awaiting appointees.

Read more



2022 rundown: Public-sector labor legislation in the states

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We’re off to the races in 2022! Thirty-two state legislatures are currently in session. Today, we’re taking a look at bills related to public-sector labor policy that have been introduced so far this year. 

Overview

We’re currently tracking 71 pieces of legislation related to public-sector labor policy in the states. Twenty-four of those bills have been introduced this year, and the rest were carried over from 2021. Since 2019, we’ve tracked an average of 107 bills per year.   

Of the bills introduced so far this year, Democrats and Republicans have each sponsored 12. Seven of the Republican-sponsored bills were introduced in Republican trifecta states, and five of the Democratic-sponsored bills were introduced in a Democratic trifecta state. Nine bills were introduced in states with divided government, and three Democratic-sponsored bills were introduced in states with Republican trifectas. 

Bill details

The following bills have been introduced in 2022:

  • Florida H1197 and S1458: These bills would require certain public employees to sign an authorization form before joining a union acknowledging that union membership is not a condition for employment and that membership and dues are voluntary. The bills would require unions to allow certain public employees to end their membership by a written request. The bills would also prevent employers from deducting dues from certain employees’ paychecks. Both proposals would also amend requirements for bargaining agent recertification and union registration renewal. Republican sponsorship.  
  • Kentucky HB111: This bill would remove current restrictions on public employee collective organizing and strikes. It would repeal requirements for dues deduction authorizations. It would prevent state law from prohibiting public employers and local governments from requiring union membership for employment. Democratic sponsorship.
  • Maryland SB118: This bill would extend collective bargaining rights to certain graduate students within the University System of Maryland, Morgan State University, and St. Mary’s College of Maryland. Democratic sponsorship
  • Missouri HB2121 and SB728: These bills would establish the “Public Employee Janus Rights Act.” They would require public employees to give written, informed consent before union dues or fees may be withheld from their paychecks. Employees must also give written, informed consent for unions to use fees or dues for political purposes. Republican sponsorship.
  • Missouri HB2122 and SB880: These bills would bar employers from requiring employees to become, remain, or refrain from becoming members of a union as a condition of employment. Republican sponsorship.
  • Missouri SB706: This bill would bar employers from requiring employees to join or not join a union as a condition of employment in counties that adopt the provisions of the bill. Republican sponsorship.
  • New Hampshire HB1041: This bill would extend the public employee labor relations act to cover nonpartisan employees of the New Hampshire legislature. Democratic sponsorship.
  • New Hampshire HB1472: This bill would prohibit employers from taking certain actions against employees involved in legal strikes or collective bargaining preceding a legal strike. It would also prohibit employers from “[engaging] in anti-union training of any kind.” Democratic sponsorship.   
  • Vermont H0621: This bill would allow certification of collective bargaining representatives through majority employee sign-up and voluntary employer recognition. Democratic sponsorship.  
  • Virginia HB335: This bill would allow public employees to bargain independently. It would prevent collective bargaining agreements from applying to non-member employees. Republican sponsorship.  
  • Virginia HB336: This bill would require a 51% vote of public employees in a collective bargaining unit to certify a bargaining representative in localities that have authorized collective bargaining. Republican sponsorship.
  • Virginia HB337: This bill would prohibit collective bargaining agreements from having a public employer provide compensation or compensated leave time for union activities. It would require unions to compensate public employers if union activities infringe upon their time or resources. Republican sponsorship.
  • Virginia HB341: This bill would require public employees to give consent before employers may deduct union dues from their pay, and it would allow employees to stop paying dues at any time. It would require annual reconfirmation of consent for union membership and dues deductions. Republican sponsorship.
  • Virginia HB790: This bill would prevent localities from entering collective bargaining agreements with law enforcement employee associations if the agreements do not meet certain criteria. Republican sponsorship.
  • Virginia SB264: This bill would allow state and local government employees, other than exempted employees, to organize and bargain collectively, and it would create a Public Employee Relations Board. It would require public employers and employee organizations to negotiate in good faith. Democratic sponsorship.
  • Washington HB1764: This bill would stipulate new requirements for collective bargaining negotiations and arbitration between the University of Washington School of Medicine and residents and fellows who have the right to bargain collectively. Democratic sponsorship
  • Washington HB1771: This bill would allow family child care providers to bargain collectively over defined contribution retirement benefits. Democratic sponsorship. 
  • Washington HB1806 and SB5773: These bills would give state legislative branch employees the right to bargain collectively. Democratic sponsorship.  
  • Washington SB5579: This bill would give Washington Management Service personnel the right to bargain collectively. Democratic sponsorship
  • West Virginia HB3124: This bill would outline rights and procedures for public employee collective bargaining. Democratic sponsorship

As always, an overview of the current legislation we’re tracking and a list of legislative actions from the past week are included at the end of this newsletter.

To view spreadsheets with information about all of the public-sector labor bills we’ve tracked since 2018, click here

What we’re reading

The big picture

Number of relevant bills by state

We are currently tracking 71 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

Below is a complete list of relevant legislative actions taken since our last issue.

  • Delaware SB201: This bill would apply the Delaware Public Employment Relations Act to employers of 10 or more full-time employees, rather than 100 or more full-time employees.
    • Democratic sponsorship.
    • Senate Labor Committee hearing scheduled for Jan. 19. 
  • Florida H1197: This bill would require certain public employees to sign an authorization form before joining a union acknowledging that union membership is not a condition for employment and that membership and dues are voluntary. It would require unions to allow certain public employees to end their membership by a written request. The bill would also prevent employers from deducting dues from certain employees’ paychecks. It would also amend requirements for bargaining agent recertification and union registration renewal. 
    • Republican sponsorship.
    • Referred to House State Affairs Committee (Government Operations Subcommittee), first reading Jan. 11. 
  • Florida S1458: This bill would require certain public employees to sign an authorization form before joining a union acknowledging that union membership is not a condition for employment and that membership and dues are voluntary. It would require unions to allow certain public employees to end their membership by a written request. The bill would also prevent employers from deducting dues from certain employees’ paychecks. It would also amend requirements for bargaining agent recertification and union registration renewal.
    •  Republican sponsorship.
    • Referred to Senate Judiciary, Governmental Oversight and Accountability, and Appropriations Committees Jan. 12. 
  • Maine LD555: This bill would grant most public-sector employees the right to strike. Select public safety and judicial employees would not be allowed to strike. 
    • Democratic sponsorship.
    • Hearing scheduled for Jan. 19. 
  • Maryland SB118: This bill would extend collective bargaining rights to certain graduate students within the University System of Maryland, Morgan State University, and St. Mary’s College of Maryland.
    • Democratic sponsorship. 
    • Senate Finance Committee hearing scheduled for Jan. 27.
  • Missouri SB706: This bill would bar employers from requiring employees to join or not join a union as a condition of employment in counties that adopt the provisions of the bill.
    • Republican sponsorship.
    • Second read, referred to Senate Small Business and Industry Committee on Jan. 10.
  • Missouri SB728: This bill would establish the “Public Employee Janus Rights Act.” It would require public employees to give written, informed consent before union dues or fees may be withheld from their paychecks. Employees must also give written, informed consent for unions to use fees or dues for political purposes. 
    • Republican sponsorship.
    • Second read, referred to Senate General Laws Committee on Jan. 13.
  • New Hampshire HB1041: This bill would extend the public employee labor relations act to cover nonpartisan employees of the New Hampshire legislature. 
    • Democratic sponsorship.
    • House Legislative Administration Committee hearing scheduled for Jan. 19.
  • New Jersey A5862: This bill would expand the terms and conditions negotiable between government employers and public-sector unions to those that “intimately and directly affect employee work and welfare,” with certain exceptions. It would also allow a public-sector union to charge a non-dues-paying employee for the cost of representation in arbitration proceedings, and to decline to represent those who do not agree to pay.
    • Democratic sponsorship.
    • Substituted by S3810 on Jan. 10.
  • New Jersey S3810: This bill would expand the terms and conditions negotiable between government employers and public-sector unions to those that “intimately and directly affect employee work and welfare,” with certain exceptions. It would also allow a public-sector union to charge a non-dues-paying employee for the cost of representation in arbitration proceedings, and to decline to represent those who do not agree to pay.
    • Democratic sponsorship. 
    • Substituted for A5862, passed both chambers Jan. 10.
  • Vermont H0621: This bill would allow certification of collective bargaining representatives through majority employee sign-up and voluntary employer recognition.
    • Democratic sponsorship.   
    • Read first time, referred to House General, Housing, and Military Affairs Committee on Jan. 13.
  • Virginia HB335: This bill would allow public employees to bargain independently. It would prevent collective bargaining agreements from applying to non-member employees.
    • Republican sponsorship.
    • Introduced Jan. 11, committee referral pending.
  • Virginia HB336: This bill would require a 51% vote of public employees in a collective bargaining unit to certify a bargaining representative in localities that have authorized collective bargaining. 
    • Republican sponsorship.
    • Introduced Jan. 11, committee referral pending.
  • Virginia HB337: This bill would prohibit collective bargaining agreements from having a public employer provide compensation or compensated leave time for union activities. It would require unions to compensate public employers if union activities infringe upon their time or resources. 
    • Republican sponsorship.
    • Introduced Jan. 11, committee referral pending.
  • Virginia HB341: This bill would require public employees to give consent before employers may deduct union dues from their pay, and it would allow employees to stop paying dues at any time. It would require annual reconfirmation of consent for union membership and dues deductions.
    • Republican sponsorship.
    • Introduced Jan. 11, committee referral pending.
  • Virginia HB790: This bill would prevent localities from entering collective bargaining agreements with law enforcement employee associations if the agreements do not meet certain criteria.
    • Republican sponsorship.
    • Introduced Jan. 11, committee referral pending.
  • Virginia SB264: This bill would allow state and local government employees, other than exempted employees, to organize and bargain collectively, and it would create a Public Employee Relations Board. It would require public employers and employee organizations to negotiate in good faith.
    • Democratic sponsorship.
    • Referred to Senate Commerce and Labor Committee Jan. 11.
  • Washington HB1764: This bill would stipulate new requirements for collective bargaining negotiations and arbitration between the University of Washington School of Medicine and residents and fellows who have the right to bargain collectively.
    • Democratic sponsorship.
    • Public hearing in the House Labor & Workplace Standards Committee held Jan. 14.
  • Washington HB1771: This bill would allow family child care providers to bargain collectively over defined contribution retirement benefits.
    • Democratic sponsorship.
    • Public hearing in the House Labor & Workplace Standards Committee held Jan. 14.
  • Washington HB1806: This bill would give state legislative branch employees the right to bargain collectively. 
    • Democratic sponsorship.
    •  First reading, referred to House Labor & Workplace Standards Committee Jan. 10.
  • Washington SB5579: This bill would give Washington Management Service personnel the right to bargain collectively.   
    • Democratic sponsorship.
    • First reading, referred to Senate Labor, Commerce & Tribal Affairs Committee Jan. 10.
  • Washington SB5773: This bill would give state legislative branch employees the right to bargain collectively. 
    • Democratic sponsorship.
    • First reading, referred to Senate Labor, Commerce & Tribal Affairs Committee Jan. 11.
  • West Virginia HB3124: This bill would outline rights and procedures for public employee collective bargaining. 
    • Democratic sponsorship.
    • Referred to House Government Organization Committee Jan. 12.


Reviewing wave election data from From 1918 to 2018

Welcome to the Friday, January 14, Brew. 

By: Douglas Kronaizl

Here’s what’s in store for you as you start your day:

  1. Six of 11 wave elections in the U.S. House took place during a president’s first midterm election
  2. Ohio Supreme Court orders state legislative maps redrawn
  3. #FridayTrivia: How many school board recall efforts is Ballotpedia tracking so far in 2022?

Six of 11 wave elections in the U.S. House took place during a president’s first midterm election

With the 2022 election cycle upon us, you might start hearing the term wave election more and more. The term is often used to describe an election in which one party makes significant electoral gains.

In 2018, we published a study spanning from Woodrow Wilson’s (D) second midterm in 1918 to Donald Trump’s (R) election in 2016. We defined wave elections as the 20 percent of elections during that time that had the greatest swings against the president’s party. According to this definition, a U.S. House election cycle qualifies as a wave election if the president’s party loses at least 48 seats.

Between 1918 and 2016, 11 wave elections took place in the U.S. House. Six of these waves occurred during a president’s first midterm election, four during Democratic presidencies (Obama, Clinton, Johnson Truman) and two during Republican presidencies (Harding and Hoover). The president’s party lost an average of 58 seats in the U.S. House during these six election cycles.

As of Jan. 13, Democrats held 221 seats in the U.S. House. A wave election would result in them controlling no more than 173 seats in the chamber. Since the House grew to 435 seats in 1913, Democrats have held fewer than 173 seats twice: 131 during the 67th Congress (1921-23) and 164 during the 71st Congress (1929-31).

The 2018 U.S. House elections were the most recent first midterm election of a presidency, taking place after Trump’s election in 2016. Democrats won a majority in the chamber by gaining a new of 40 seats, meaning the 2018 midterm election was eight seats short of qualifying as a wave election.

Keep reading 

Ohio Supreme Court orders state legislative maps redrawn

On Jan. 12, the Ohio Supreme Court ruled that the state legislative district maps approved by the Ohio Redistricting Commission were partisan gerrymanders in violation of the state constitution. The court struck down the maps and ordered the commission to draw new maps in accordance with the constitution within 10 days. The Republican-controlled commission voted 5-2 along party lines in favor of the maps on Sept. 16, 2021.

In its ruling, the court cited a constitutional amendment approved by Ohio voters in 2015 that revamped the state’s redistricting process by creating the bipartisan commission responsible for drawing state legislative maps without partisan bias. Voters approved the amendment with 71% of the vote.

The amendment also included a proportionality requirement, which directed the commission to try to match districts with statewide vote totals over the past decade. During the redistricting process, it was determined that Republicans had won 54% of the statewide vote since 2010 and Democrats had won 46%. The court said the commission’s maps favored Republicans in 68% of the House districts and 70% of the Senate districts, in violation of the amendment.

This is the first overturned redistricting map during the 2020 redistricting cycle, dropping the total number of states with enacted legislative maps from 28 to 27.

After the 2010 redistricting cycle, Ballotpedia tracked redistricting lawsuits in 37 states. During that redistricting cycle, at least 14 states had to redraw all or parts of their legislative maps following court orders.

As of Jan. 13, Ballotpedia has identified redistricting-related lawsuits in at least 30 states as part of the 2020 redistricting cycle.

Keep reading 

#FridayTrivia: How many school board recall efforts is Ballotpedia tracking so far in 2022?

In the Tuesday Brew, we gave you a breakdown of the elections we covered on Jan. 11 including two school board recalls in Nebraska. We also shared that, despite being only two weeks into the new year, Ballotpedia has already identified as many school board recall efforts in 2022 as we did throughout the entirety of 2009, 2011, and 2019.

Including the two recall elections in Nebraska, how many school board recall efforts is Ballotpedia tracking so far in 2022?

  1. 13
  2. 38
  3. 5
  4. 20


Heart of the Primaries 2022, Democrats – Issue 5

In this issue: FL-20 rematches on the horizon and several Tennessee counties opt for partisan school board elections

Rematches on horizon in FL-20 Democratic primary

On Jan. 11, Sheila Cherfilus-McCormick (D) won a special election to succeed former Rep. Alcee Hastings (D), who died in April of last year. Cherfilus-McCormick received 79% of the vote. If Cherfilus-McCormick runs for a full term later this year, she’ll once again face several opponents from last November’s special Democratic primary, including second-place finisher Dale Holness and third-place finisher Barbara Sharief.

Cherfilus-McCormick defeated Holness by 5 votes in the special primary. Both candidates had 23.8% of the vote. Sharief received 17.7%. Holness and Sharief were Broward County commissioners. Cherfilus-McCormick is CEO of Trinity Health Care Services. 

Cherfilus-McCormick campaigned on $1,000-per-month payments to people over 18 making less than $75,000 a year, Medicare for All, and a $20 minimum wage. Holness’ campaign website said he would fight to make the district “a beacon of economic growth throughout America.” Sharief’s platform included a $15 minimum wage and expanding Medicare and Medicaid coverage.

The Democratic primary for the November 2022 general election is set for Aug. 23.

In addition, three special primary elections were held Tuesday for legislative districts where incumbents resigned to run in the special Democratic primary for Congress. 

  • Florida Senate District 33: Rosalind Osgood defeated Terry Edden 74% to 26%.
  • Florida House District 88: Jervonte Edmonds defeated Clarence Williams 65% to 35%.
  • Florida House District 94: Daryl Campbell defeated three other candidates with 40% of the vote. Josephus Eggelletion III was second with 29%.

Osgood and Edmonds face Republican challengers in special general elections on March 8. The general election for House District 94 was canceled due to lack of opposition.

Chicago Ald. Dowell drops SoS bid to run in 1st District primary

On Jan. 5, Chicago Ald. Pat Dowell (D) announced she would end her bid for Illinois secretary of state and instead run in the Democratic primary for the 1st Congressional District. Dowell made the announcement following 1st District Rep. Bobby Rush’s (D) announcement that he would not seek re-election. The Chicago Sun-Times‘ Lynn Sweet said Dowell’s political and fundraising campaign operation would give her a strong position in the primary

Sweet also reported that Chicago Cook Workforce Partnership CEO Karin Norington-Reaves launched a primary campaign for the 1st District. Rush told the Chicago Sun-Times he plans to endorse a successor in the coming weeks. Sweet said that “there are signs pointing to Norington-Reaves getting his nod. She worked with Rush in bringing to his district the Chatham Education and Workforce Center.”

The 1st Congressional District contains portions of Chicago’s South Side and southern suburbs. According to The Cook Political Report, the district is solidly Democratic.

Rush was first elected in 1992 and is the only politician to defeat former President Barack Obama (D) in an election. Rush defeated then-state Sen. Obama 61%-30% in the 2000 U.S. House Democratic primary.

Clay Aiken launches second U.S. House bid in N.C.

Clay Aiken, an entertainer and former American Idol contestant, announced his bid for North Carolina’s 6th Congressional District on Jan. 10. In 2014, Aiken won the Democratic primary in North Carolina’s 2nd Congressional District. Incumbent Renee Ellmers (R) defeated him in the general 59% to 41%. 

In 2003, Aiken lost Season 2 of American Idol to Ruben Studdard by a 134,000-vote margin out of 24 million votes cast.

Other Democratic primary candidates so far include Durham County Commissioner Nida Allam, state Sen. Valerie Foushee, and state Sen. Wiley Nickel.

The redrawn 6th District includes much of the current 4th District, which retiring Rep. David Price (D) represents. Three independent outlets have rated North Carolina’s 6th as Safe or Solid Democratic

In December, the North Carolina Supreme Court postponed the state’s 2022 primary election from March 8 to May 17 to allow time for redistricting map challenges to move through the courts. On Jan. 11, the Wake County Superior Court ruled in favor of the congressional district maps. Appeals are possible.

Multiple Tennessee counties switch to partisan school board elections 

At least eight of the 10 largest counties in Tennessee will hold partisan primary elections for school board in 2022. Gov. Bill Lee (R) signed a bill in November giving county parties the ability to hold partisan primary elections. Before now, school board elections were nonpartisan with candidates prohibited from identifying or campaigning with any political party. 

Davidson, Knox, Hamilton, Rutherford, Williamson, Sumner, Sullivan, and Wilson counties will hold partisan primary elections for school boards this year. 

In Williamson County, the GOP made the switch first. County GOP Chairwoman Cheryl Brown said, “If you’re running for something, if you’re running for a particular position … you should state your political stance.” The county Democratic Party opposed the switch but followed suit.  The party said in a statement, “While the WCDP firmly believes partisanship has no place in school board elections, we can’t sit idly by while Republicans choose political power and polarization over the quality of education and safety of our children.”

Shelby County, the state’s largest county and home to Memphis, will continue holding nonpartisan school board elections in 2022. County Democratic Party Chairwoman Gabby Salinas said, “All of us, regardless of political affiliation, have a vested interest in the education of our children.” County GOP Chairman Cary Vaughn said the party “see[s] no advantage or benefit in changing our protocol.”

County Democratic and Republican parties had until Dec. 10 to alert county election officials as to whether they would hold a partisan or nonpartisan primary or caucus. In counties where candidates advance from a partisan primary to the general election, party labels will appear beside candidates’ names on the general election ballot.

Click here to learn about prominent conflicts in school board elections across the country.

Oregon governor’s race: Kristof disqualified, Kotek resigns from state House to focus on campaign

On Jan. 6, Nick Kristof was disqualified from Oregon’s gubernatorial primary ballot, and House Speaker Tina Kotek announced she’d resign to focus on her gubernatorial campaign.

Secretary of State Shemia Fagan (D) said former New York Times columnist Nick Kristof did not meet residency requirements to be on the ballot. Kristof asked the Oregon Supreme Court to overturn her decision. The court will consider the matter.

This year’s gubernatorial candidates must have been Oregon residents since at least November 2019. Kristof voted as a New York resident in 2020. Kristof disputed Fagan’s interpretation of the word resident and said that he meets the requirement partly because he considers his family farm in the state, which he leased in 2018, to be his home. 

Meanwhile, Kotek announced her resignation from the state House effective Jan. 21. Kotek became speaker in 2013 and was the longest-serving speaker in the state’s history. OPB’s Dirk VanderHart wrote that “allies had expected her to lead a tightly scripted one-month ‘short’ session [in February] that will tackle continued police reforms, the state’s ongoing housing crisis, worker protections and more.”

Kotek cited a realization from a one-day special session in December for her resignation: “I always do everything 110% … I want to make sure session has my full attention and I just felt like I couldn’t do it.”

At the end of 2021, Kristoff led in fundraising with $2.5 million. Kotek was second with $838,000 and state Treasurer Tobias Read third with $726,000. 

The filing deadline is March 8 and the primary is May 17. Current Gov. Kate Brown (D) is term-limited.

Bailey switches from AG to Lt. governor’s race in Georgia

Charlie Bailey, the 2018 Democratic nominee for attorney general, ended his 2022 bid for the same office to seek the lieutenant gubernatorial nomination instead. Bailey said, “Leaders in the party asked me to consider the switch, and the more I looked at it, the more I saw I could help the ticket by talking about public safety, criminal justice reform and expanding health care.”

Bailey lost in 2018 to incumbent Chris Carr (R) 48.7% to 51.3%. In the 2022 attorney general Democratic primary, he was set to face state Sen. Jen Jordan, whom several state legislators and national groups endorsed.

The Atlanta Journal-Constitution‘s Greg Bluestein said Bailey “hopes to take advantage of a muddled field with no clear favorite” in the lieutenant gubernatorial primary. The field includes state Reps. Erick Allen, Derrick Jackson, and Renitta Shannon. U.S. Reps. Lucy McBath (D-Ga.) and Hank Johnson (D-Ga.) and former Gov. Roy Barnes (D) endorsed Bailey.

Lt. Gov. Geoff Duncan (R) is not seeking re-election. The primary is May 24.