CategoryNewsletters

California’s gubernatorial recall election is today

Welcome to the Tuesday, September 14, Brew. Here’s what’s in store for you as you start your day:

  1. California’s gubernatorial recall election is today
  2. Joe Biden (D) has appointed the most federal judges through September 1 of a president’s first year
  3. First 2022 state supreme court vacancy announced

California’s gubernatorial recall election is today

Today, Sept. 14, is the deadline for California voters to cast their ballots in the gubernatorial recall election against Gov. Gavin Newsom (D). Polling places will be open for in-person voting or ballot drop-off from 7 a.m. to 8 p.m. PDT. These polling places also allow for same-day voter registration. All registered voters in the state were previously sent an absentee/mail-in ballot in August. Those ballots must be postmarked today to be counted.

The recall election will present voters with two questions. The first asks whether Newsom should be recalled from the office of governor. The second will ask who should succeed Newsom if he is recalled. A majority vote supporting the recall is required on the first question for the governor to be recalled. If that occurs, the candidate with the most votes on the second question would win the elections, no majority required.

California allows election officials to begin counting ballots as they are received, meaning it is likely some results will be made available after polls close tonight. The timing of the final result is harder to determine since officials will be receiving absentee/mail-in ballots until next Tuesday and voters are given about a month to correct signature errors. If the race is close, we might be waiting for that final result.

For context, here’s what the timeline looks like coming up:

  • Sept. 14: Deadline to cast a ballot in the recall election. This is also the deadline for voters to place completed absentee/mail-in ballots in the mail.
  • Sept. 21: Deadline for officials to receive absentee/mail-in ballots.
  • Oct. 6: Deadline for officials to notify voters of signature mismatches.
  • Oct. 12: Deadline for voters to verify signatures in the case of a mismatch.
  • Oct. 22: Election certification date.

Forty-six candidates, including nine Democrats and 24 Republicans, are running in the election. The candidates who have received the most media attention and best poll performances so far are YouTuber Kevin Paffrath (D), 2018 gubernatorial candidate John Cox (R), radio host Larry Elder (R), former San Diego Mayor Kevin Faulconer (R), California State Board of Equalization member Ted Gaines (R), former Olympian and television personality Caitlyn Jenner (R), and Assemblyman Kevin Kiley (R).

Averages from the four polls released this month showed 41% of respondents supporting the recall on the first question and 57% opposing. An average of 36% of respondents said they would leave the second question blank—which Newsom has recommended—and 32% said they would support Elder (R).

Since 1911, there have been 55 attempts to recall a California governor. The only successful recall campaign was in 2003 when voters recalled Gov. Gray Davis (D) and elected Arnold Schwarzenegger (R) as Davis’ replacement. In that election, 135 candidates ran and Schwarzenegger received 48.6% of the vote on the second question.

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Joe Biden (D) has appointed the most federal judges through September 1 of a president’s first year

President Joe Biden (D) has appointed and the U.S. Senate has confirmed nine Article III judicial appointments through Sept. 1 of his first year in office. This is the largest number of Article III judicial appointments through this point in all presidencies going back to Ronald Reagan (R). The U.S. Senate confirmed six of Donald Trump’s (R) appointees at this point in his term.

The average number of federal judges appointed by a president through Sept. 1 of their first year in office is four.

Of the nine judges appointed by Biden, five filled vacancies left by judges who were nominated by Republican presidents: four by George W. Bush (R) and one by Ronald Reagan (R). The remaining four judges filled vacancies left by judges nominated by Democratic presidents: three by Bill Clinton (D) and one by Barack Obama (D). The full list is shown below:

Article III federal judges are appointed for life terms by the president of the United States and confirmed by the U.S. Senate per Article III of the U.S. Constitution. Article III judges on all of the following courts: U.S. Supreme Court, U.S. courts of appeals, U.S. district courts, and the Court of International Trade.

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First 2022 state supreme court vacancy announced

Wyoming State Supreme Court Justice Michal K. Davis announced he would retire on Jan. 16, 2022, upon reaching the state court’s mandatory retirement age of 70 years. This vacancy is the first state supreme court vacancy announced for 2022. 

Davis’ replacement will be Gov. Mark Gordon’s (R) first nominee to the five-member supreme court. Under Wyoming’s assisted appointment method, Gordon will pick a replacement from a list of three judges provided to him by a nominating commission, made up of the current chief justice, three members appointed by Gordon, and three members appointed by the state bar.

In our 2021 “Determiners and Dissenters” analysis, we found that the Wyoming Supreme Court was the sixth-most unanimous state supreme court in the country. This analysis examined how frequently justices ruled unanimously on an issue versus a split decision. In the 158 cases before the Wyoming Supreme Court in 2020, justices ruled unanimously on 152 of them (96.2%). Only the state supreme courts in Georgia, Virginia, Delaware, Massachusetts, and Nebraska had higher unanimity rates.

Ballotpedia has tracked 16 state supreme court vacancies so far in 2021. Of those 16 vacancies, two were announced in 2020, though neither as early as Davis’ announcement for 2022. Thirteen of the vacancies in 2021 have been filled with one vacancy outstanding. The remaining two justices are set to retire on Dec. 31, 2021, meaning their replacements likely will not be sworn in until 2022.

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Bold Justice: Federal Judicial Vacancy Count released for September 1

Welcome to the September 13 edition of Bold Justice, Ballotpedia’s newsletter about the Supreme Court of the United States (SCOTUS) and other judicial happenings around the U.S.

When the air is white with the down o’ the thistle, ⁠
And the sky is red with the harvest moon; …

Put another way, it’s September! SCOTUS doesn’t start hearing arguments until next month, but they have certainly been busy!  Let’s gavel in, shall we?

Stay up to date on the latest news by following Ballotpedia on Twitter or subscribing to the Daily Brew.

We #SCOTUS and you can, too!

Noteworthy court announcements

Here’s a quick roundup of the court’s most recent noteworthy announcements since the August 9 edition of Bold Justice:

Court announces in-person arguments for October, November, December sittings

  • On September 8, SCOTUS announced it would hear oral arguments in person for the first time since March 4, 2020, during its October, November, and December sittings. However, the court will not be open to the public, in accordance with its current precautions in response to COVID-19. Audio of the court’s proceedings will be streamed live to the public, as was the case during the 2020-2021 term. The audio files and argument transcripts for cases will be posted on the court’s website following oral argument each day.

Court rejects emergency appeal to Texas law banning abortions after six weeks of pregnancy

  • On August 31, SCOTUS did not respond to an emergency appeal from a group of abortion providers seeking to block enforcement of a Texas law banning abortion procedures after six weeks of pregnancy. The law also authorized private citizens to file civil actions against individuals for violating the law or aiding in violation of the law. Governor Greg Abbott (R) signed the bill, S.B. 8, into law on May 19, 2021. 
  • The appellants alleged that the law violated the Supreme Court’s rulings in Roe v. Wade (1973) and Planned Parenthood v. Casey (1992), establishing the constitutional right to have an abortion before the point of fetal viability approximately 24 weeks into a pregnancy. The emergency appeal was submitted through the United States Court of Appeals for the 5th Circuit to Justice Samuel Alito, who is assigned to the circuit and responsible for reviewing emergency appeals. As the circuit justice, Alito was authorized to respond to the request himself or refer the matter to the full court for consideration.
  • On September 1, the court issued a 5-4 ruling denying the request to block enforcement of the Texas law. Chief Justice John Roberts and Justices Stephen Breyer, Sonia Sotomayor, and Elena Kagan would have granted the application and filed dissenting opinions.

Court issues ruling on federal eviction moratorium

  • On August 26 in a 6-3 per curiam ruling, SCOTUS granted an application from the Alabama Association of Realtors et al to vacate the nationwide moratorium on evictions of tenants living in counties with substantial or high levels of COVID–19 transmission and who make declarations of financial need. The Centers for Disease Control and Prevention (CDC) imposed the moratorium in response to the coronavirus pandemic. In the unsigned opinion, the court stated, “If a federally imposed eviction moratorium is to continue, Congress must specifically authorize it. The application to vacate stay presented to [the Chief Justice] and by him referred to the Court is granted.” Justice Breyer filed a dissenting opinion, joined by Justices Sotomayor, and Kagan.

Court rejects application for stay of Trump administration “remain in Mexico” policy

  • On August 24, SCOTUS denied the Biden administration’s application for a stay, or postponement, of a U.S. District Court for the Northern District of Texas injunction requiring the reinstatement of a Trump administration program referred to as the “remain in Mexico” policy. The policy requires asylum seekers to remain in Mexico while awaiting a U.S. immigration court hearing. The order noted that Justices Breyer, Sotomayor, and Kagan would have granted the application

Court denies request to halt groundbreaking for Obama presidential library

  • On August 20, Justice Amy Coney Barrett denied a request from Protect Our Parks, Inc. to block the groundbreaking construction and excavation for building the Obama Presidential Center in Jackson Park in Chicago, Illinois. The group alleged construction may cause irreversible harm to local wildlife, land, and historical characteristics in the area and to the public’s enjoyment of the area. Barrett denied the request without referring it to the full court.

Court issues ruling on state eviction moratorium

  • On August 12 in a 6-3 per curiam ruling, SCOTUS granted a request from a group of landlords in New York to lift part of a state moratorium on residential evictions–Part A of the COVID Emergency Eviction and Foreclosure Prevention Act (CEEFPA)–established in 2020 at the start of the COVID-19 pandemic. The court ruled Part A, which allows tenants to self-certify financial hardship and does not allow landlords to contest that certification, violated the due process clause. Justice Breyer filed a dissenting opinion, joined by Justices Sotomayor and Kagan.

Justice Barrett denies request related to university vaccine requirement

  • On August 12, Justice Barrett denied an application from a group of students at Indiana University requesting the court block the school’s COVID-19 vaccine requirement for students. Barrett denied the request without referring it to the full court.

Grants

SCOTUS has accepted three new cases to its merits docket since our August 9 issue. To date, the court has agreed to hear 34 cases for the 2021-2022 term. SCOTUS dismissed two cases after they were accepted. Fourteen cases have yet to be scheduled for arguments.

Click the links below to learn more about these cases:

  • Johnson v. Arteaga-Martinez originated from the U.S. Court of Appeals for the 3rd Circuit and concerns detained non-citizens’ right to a bond hearing.
  • Garland v. Gonzalez concerns detained non-citizens’ right to a bond hearing and whether U.S. courts are allowed to grant classwide injunctive relief, halting an order commanding a party to either perform or not perform an action, in such cases. The case originated from the U.S. Court of Appeals for the 9th Circuit.
  • Ramirez v. Collier, originating from the U.S. Court of Appeals for the 5th Circuit, is a capital case concerning the type of aid a spiritual advisor is permitted to provide in an execution chamber.

Arguments

SCOTUS has scheduled nine cases for nine hours of oral argument since our August 9 issue. 

Click the links below to learn more about these cases:

November 1

November 2

November 3

November 8

November 9

November 10

To date, 13 cases accepted to the court’s merits docket have not yet been scheduled for arguments.

Upcoming SCOTUS dates

Here are the court’s upcoming dates of interest:

  • September 27: SCOTUS will conference. A conference is a private meeting of the justices.
  • October 4: SCOTUS will hear arguments in two cases.
  • October 5: SCOTUS will hear arguments in two cases.
  • October 6: SCOTUS will hear arguments in one case.

SCOTUS trivia

Over the history of the U.S. Supreme Court, justices have been appointed from 31 different states. Which of the following has never been a home state of a SCOTUS justice at the time of their appointment?

  1. Alabama
  2. Delaware
  3. New Hampshire
  4. Utah

Choose an answer to find out!

The Federal Vacancy Count

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 2 to September 1. 

Highlights

  • Vacancies: There have been four new judicial vacancies since the July 2021 report. There are 82 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, 87 of 890 active federal judicial positions are vacant.  
  • Nominations: There were three new nominations since the July 2021 report. 
  • Confirmations: There was one confirmation since the July 2021 report.

Vacancy count for September 1, 2021

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

Four judges left active status since the previous vacancy count, creating Article III life-term judicial vacancies. The president nominates individuals to fill Article III judicial position vacancies. Nominations are subject to U.S. Senate confirmation.

The following chart tracks the number of vacancies in the United States Courts of Appeals from President Joe Biden‘s (D) inauguration to the date indicated on the chart.

U.S. District Court vacancies

The following map shows the number of vacancies in the United States District Courts as of September 1, 2021.

New nominations

President Biden announced three new nominations in August:

New confirmations

As of September 1, the Senate has confirmed nine of President Biden’s judicial nominees—five district court judges and four appeals court judges—since January 2021.

The first confirmations occurred on June 8, when Julien Neals and Regina Rodriguez were confirmed to their respective courts. 

Ketanji Brown Jackson, who was confirmed on June 14, was the first confirmed nominee to receive her judicial commission. Jackson was commissioned on June 17.

Comparison of Article III judicial appointments over time by president (1981-Present)

  • Presidents have made an average of four judicial appointments through September 1 of their first year in office. 
  • President Biden has made the most, nine, while Presidents Bill Clinton (D) and Barack Obama (D) had confirmed the fewest in that time with one each. 
  • President Ronald Reagan’s (R) 41 appointments signify the most through his first year. President Obama made the fewest with 13.
  • President Donald Trump’s (R) 234 appointments signify the most appointments through four years. President Reagan made the fewest through four years with 166.

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 this list for updates on federal judicial nominations.

Spotlight: Presidential nominations to federal courts

Today, we highlight President Herbert Hoover’s (R) federal judicial nominees from 1929 to 1933.


During his time in office, the U.S. Senate confirmed 69 of President Hoover’s judicial nominees. The Senate did not vote on or rejected 11 of Hoover’s nominees.

Among the most notable appointees were three Supreme Court Justices:

President Hoover’s first Article III appointees were confirmed on April 18, 1929—two nominees were confirmed to U.S. Courts of Appeal and five nominees were confirmed to U.S. District Courts. By the end of his first year in office, 18 of Hoover’s nominees had been confirmed–six to U.S. circuit courts, nine to U.S. district courts, one to the U.S. Court of Customs and Patent Appeals, and two to the U.S. Court of Federal Claims. 

Hoover averaged 17 judicial appointments per year. For comparison, President Jimmy Carter (D) had the highest average from 1901 to 2021 with 65.5 appointments per year.

Looking ahead

We’ll be back on October 4 with a new edition of Bold Justice. Until then, gaveling out! 

Contributions

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



Loudoun County school board recall effort heads to court

Welcome to the Monday, September 13, Brew. Here’s what’s in store for you as you start your day:

  1. Hearing on Loudoun County school board recall effort set for Sept. 13
  2. Tomorrow’s California recall election
  3. Florida Realtors suspends initiative campaign following compromise with state legislators

Hearing on Loudoun County school board recall effort set for Sept. 13

Ballotpedia has tracked 64 school board recall efforts against 165 board members so far in 2021—the highest number of school board recall efforts we have ever tracked in one year. The next-highest year was in 2010 with 38 recall efforts against 91 school board members.

One of those recall efforts this year is based out of Loudoun County, Virginia. Here’s an update.

On Aug. 25, opponents of Beth Barts submitted petition signatures to recall her from the Loudoun County School Board of Education. The show cause hearing on those petitions will take place on Sept. 13 (today).

In Virginia, recall efforts are determined in circuit court rather than at the ballot box. Virginia, which is the only state to use this court process, also requires certain criteria be met for a recall to move forward, including neglect of duty, misuse of office, incompetence, or conviction of misdemeanors related to drugs or hate crimes. Recall supporters must collect signatures ​​equal in number to 10% of the votes cast in the last election for that office. The recall effort against Barts needed 1,176 signatures. Recall supporters announced they had collected 1,860.

Barts’ attorney filed a motion to dismiss the petition against her since it was not signed by an attorney. He also asked the circuit court judges to recuse themselves from the case because it involved local officeholders.

Barts was first elected to a four-year term on the board on Nov. 5, 2019. She received 54.8% of the vote and defeated one other candidate. Though school board elections are nonpartisan, Barts is supported by the Loudoun County Democratic Committee.

Recall supporters are also circulating petitions against another six members of the nine-member school board. They said the board members’ involvement in a private Facebook group, where they discussed public matters in a private setting, was a violation of Virginia’s Freedom of Information Act and the school board’s Code of Conduct. Recall supporters also alleged that the district was using Critical Race Theory in its employee training and student curriculum, which they opposed.

Interim Superintendent Scott Ziegler said the district uses a Culturally Responsive Framework that “speaks to providing a welcoming, affirming environment and developing cultural competence through culturally responsive instruction, deeper learning, equitable classroom practices and social-emotional needs for a focus on the whole child.” Ziegler said the district did not use Critical Race Theory in its staff training or student curriculum.

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Tomorrow’s California recall election

California voters will head to the polls on Sept. 14 for the recall election seeking to remove California Gov. Gavin Newsom (D).

The recall election will present voters with two questions. The first will ask whether Newsom should be recalled from the office of governor. The second will ask who should succeed Newsom if he is recalled. A majority vote is required on the first question for the governor to be recalled. If Newsom is recalled, the candidate with the most votes on the second question would win the election—no majority required.

Polling places across the state will be open for in-person voting or ballot drop-off from 7 a.m. to 8 p.m. These polling places also allow for same-day voter registration.

All registered voters in the state were previously sent a vote-by-mail ballot in August. Those mail ballots must be postmarked by Sept. 14 to be counted. California voters can click here to find their polling place.

Forty-six candidates, including nine Democrats and 24 Republicans, are running in the election. Since 1911, there have been 55 attempts to recall a California governor. The only successful recall campaign was in 2003 when voters recalled then-Gov. Gray Davis (D). Arnold Schwarzenegger (R) was elected as Davis’ replacement.

Keep reading 

Florida Realtors suspends initiative campaign following compromise with state legislators

On September 7, 2021, Floridians for Housing, a ballot initiative committee sponsored by Florida Realtors, announced they were suspending their ballot initiative campaign. The initiative would have created state and local government housing trust funds for “affordable housing access and availability, including funding of programs addressing new construction, down payment and closing cost assistance, rehabilitation, and financing for affordable housing development.” 

As of Sept. 8, the group had submitted 65,018 valid signatures. To qualify for the ballot, sponsors would have needed to submit 891,589 valid signatures by February 1, 2022. 

Florida Realtors President Cheryl Lambert said, “The legislative leadership has committed to working with us to find significant, immediate solutions to Florida’s workforce housing crisis. This crisis cannot wait. Every day, we hear about workers who are bearing the brunt of the pandemic who can’t afford a home. This approach will help bring homeownership within reach of Floridians much faster.” Florida Realtors had contributed at least $13 million to the ballot initiative committee.

Ballotpedia is tracking 24 potential initiatives targeting Florida’s 2022 ballot. As of Sept. 8, seven of the initiative campaigns had zero valid signatures submitted. For the other 17 campaigns, the number of valid signatures on file ranged from two to 9,347. That top figure came from Florida Voters in Charge, the sponsor of an initiative to expand casino gaming in Florida.

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Union Station: Biden, AFSCME include Public Service Freedom to Negotiate Act in Labor Day statements

Biden, AFSCME include Public Service Freedom to Negotiate Act in Labor Day statements

Over Labor Day weekend, President Joe Biden (D) and the American Federation of State, County and Municipal Employees (AFSCME) each reiterated their endorsements of the Public Service Freedom to Negotiate Act (PSFNA), congressional legislation originally introduced in response to the U.S. Supreme Court’s 2018 decision in Janus v. AFSCME

Biden issued a Labor Day proclamation on Sept. 3 that said, “American workers should make their own decisions –- free from coercion and intimidation — about organizing with their co-workers to have a stronger voice in their workplaces, their communities, and their government. That is why I strongly support the Protecting the Right to Organize [PRO] Act and the Public Service Freedom to Negotiate Act.” (The PRO Act, which passed the U.S. House of Representatives in March, would amend federal labor laws for private sector workers.) 

AFSCME President Lee Saunders said in a Labor Day statement that the PSFNA would “empower public employees nationwide with collective bargaining rights, giving us the seat at the table we deserve.” AFSCME also highlighted its support for the act on its blog and Facebook page over the weekend. 

About the Public Service Freedom to Negotiate Act 

First introduced the day of the Supreme Court’s decision in Janus v. AFSCME, and reintroduced a year later, the PSFNA would “[set] a minimum nationwide standard for collective bargaining rights that all states must provide to public sector workers,” according to the bill’s fact sheet.  

Versions of the bill were introduced and referred to committee in June 2018, during the 115th Congress, and in June 2019, during the 116th Congress. Sen. Mazie Hirono (D-Hawaii) and Rep. Matt Cartwright (D-Pa.) sponsored the bill both years. Neither version of the bill made it to a vote.

The 2019 bill says, “Not later than 1 year after the date of enactment of this Act, the [Federal Labor Relations Authority] shall issue rules and take such actions that the Authority determines appropriate to establish and administer collective bargaining rights and procedures that substantially provide for the rights and procedures described in [the section of the act outlining federal minimum standards for collective bargaining rights].” The Federal Labor Relations Authority is the entity that administers federal labor relations.

The bill would establish the following rights for public employees: 

(A) to self-organization;

(B) to form, join, or assist a labor organization or to refrain from any such activity;

(C) to bargain collectively through representatives of their own choosing; and

(D) to engage in other concerted activities for the purpose of collective bargaining or other mutual aid (including the filing of joint class or collective legal claims) or protection.

For more information about each version of the bill on Congress.gov, click here.

Perspectives

Support

  • In August 2020, a report from the Economic Policy Institute (EPI) said: “Currently more than half of the states lack comprehensive collective bargaining laws for public-service workers like teachers. Public-service workers deserve the right to join together in unions to fight for stronger safety and health protections, better pay, and better working conditions.” The EPI describes its mission as “to inform and empower individuals to seek solutions that ensure broadly shared prosperity and opportunity.”  
  • A fact sheet for the Communications Workers of America’s June 2020 legislative-political conference said, “Since the outrageous, anti-worker Supreme Court decision in Janus vs. AFSCME, public service workers across the country work under this unfair free rider law. It’s time to level the playing field by establishing federal protections to guarantee public service workers the right to join together and collectively bargain.” 
  • An October 2019 AFL-CIO legislative alert said, “Unlike the private sector, there is no federal law that protects the freedom of state and local public service workers to join in a union and collectively bargain for fair wages, hours, and working conditions. … It’s time to even the playing field for working people and public servants by passing the Public Service Freedom to Negotiate Act.”  
  • A June 2019 legislative report from AFSCME said the PSFNA was “needed to unrig a system that favors the wealthy over working people. It marks another big step forward in the growing political and grassroots momentum behind unions after years of attacks on workers from right-wing special interests and politicians.”
  • In June 2019, American Federation of Teachers President Randi Weingarten said, “The Public Service Freedom to Negotiate Act closes the chasm in public sector bargaining rights, ensuring minimum standards are in place across the nation, while retaining flexibility for states to write and administer their own laws. … [T]his bill helps public workers achieve together what would be impossible alone—better and more-efficient services, dignity and a voice at work, and fair compensation and benefits for the work they do. We are proud to support it.” 

Opposition

  • In March 2021, National Right to Work Committee (NRTWC) President Mark Mix wrote, “A federal power grab introduced in the 2019-20 Congress as H.R.3464/S.1970, and strongly endorsed by Biden … would, by federal fiat, foist union monopoly bargaining on state and local fire fighters and other public-sector workers in all 50 states.” NRTWC describes itself as “a coalition of 2.8 million workers and concerned Americans fighting to break the chains of forced unionism.”
  • A January 2021 report from the Mackinac Center for Public Policy said, “The Public Service Freedom to Negotiate Act represents another tremendous threat to worker freedom. This act, while incapable of overriding the Supreme Court’s 2018 Janus v. AFSCME decision … would nevertheless drastically limit state’s [sic] abilities to manage government employees. … Most notably, the PSFNA would force all states to adopt collective bargaining with almost no limitation.” The Mackinac Center describes itself as “a nonprofit research and educational institute that advances the principles of free markets and limited government.” 
  • In September 2019, Empire Center for Public Policy fellow Ken Girardin said, “While supporters claim the proposed law merely intends to protect union bargaining rights, it would represent a major change in the federal government’s long-standing neutrality towards state and local labor relations. … Requiring binding arbitration, as opposed to simply allowing parties to come to terms directly, would be a one-way street to inflexible and expensive labor deals.” The Empire Center, a New York–based think tank, says its mission is to “Make New York a better place to live and work by promoting public policy reforms grounded in free-market principles, personal responsibility, and the ideals of effective and accountable government.”  
  • In July 2018, Competitive Enterprise Institute (CEI) policy analyst Trey Kovacs wrote, “The more concerning aspect of the bill is it grants broad power to the Federal Labor Relations Authority (FLRA), which currently governs only federal employee labor relations, to enforce the legislation and to determine whether states are in compliance with its requirements. … The FLRA’s regulations will essentially override current state labor relations law and establish collective bargaining procedures for the state.” CEI’s mission is to “promote both freedom and fairness by making good policy good politics.”

What we’re reading

The big picture

Number of relevant bills by state

We are currently tracking 99 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 public-sector union bills saw activity this week.




Hurricane Ida’s impact on elections in Louisiana

Welcome to the Friday, September 10, Brew. Here’s what’s in store for you as you start your day:

  1. Louisiana Governor delays fall election dates in response to Hurricane Ida
  2. Virginia and Maryland add new state court judges
  3. #FridayTrivia: Which of these states voted for the winning candidate in five of the six previous presidential elections?

Louisiana Governor delays fall election dates in response to Hurricane Ida

Louisiana Gov. John Bel Edwards (D) issued an executive order on Thursday delaying the state’s fall elections from Oct. 9 to Nov. 13 in response to damage caused by Hurricane Ida. Nov. 13 was the date originally scheduled for any runoff elections. Under the new schedule, any runoff elections will now be held on Dec. 11.

In a Sept. 7 press release outlining his recommendation for the postponements, Secretary of State Kyle Ardoin (R) said, “A number of issues stemming from Hurricane Ida’s devastation, including questions about nursing home operations, postal service delivery, extensive power outages, polling location damages, and election commissioners and staff members still displaced, would make holding the election on its original dates virtually impossible without impairing the integrity of the election.”

Louisiana’s fall ballot includes three special state legislative elections, municipal elections in New Orleans, four constitutional amendments, and several local ballot initiatives.

This election date change is the second for Louisiana voters in the past two years. In 2020, Louisiana ultimately postponed its presidential preference primary from April 4 to July 11 in response to the coronavirus pandemic. Nineteen other states also rescheduled primary or runoff elections during the 2020 election cycle, shown below:

For New Orleans voters, in particular, a postponed election in response to a hurricane is not unheard of. In 2006, Gov. Kathleen Blanco (D) rescheduled the city’s mayoral and city council primaries from Feb. 4 to April 22 due to lingering damage following Hurricanes Katrina (Aug. 2004) and Rita (Sept. 2005). According to congressional reports, these storms displaced roughly half of the city’s voters and destroyed 295 of its 442 polling places.

Here’s a quick list of some other election date changes in response to emergencies over the past two decades:

  • 2018: The Northern Marianas Islands postponed its general election from Nov. 6 to Nov. 13 after Super Typhoon Yutu hit the territory on Oct. 24. Yutu was the strongest typhoon ever recorded in the territory.
  • 2006: New Orleans’ postponed its mayoral and city council primaries from Feb. 4 to April 22 due to lingering damage following Hurricanes Katrina (Aug. 2004) and Rita (Sept. 2005).
  • 2001: New York City postponed its municipal primary from Sept. 11 to Sept. 25 following the 9/11 terrorist attacks that took place on the morning of the election. Polls opened at 6:00 a.m. with any votes cast before the postponement nullified.

The Louisiana majority-vote system differs from those used in the other 49 states. In Louisiana, all candidates running for a local, state, or federal office appear on the same ballot in either October (in odd-numbered years) or November (in even-numbered years), regardless of their partisan affiliations. If a candidate wins 50% of the vote plus one, he or she wins the election outright. If no candidate meets that threshold, the top two finishers, regardless of their partisan affiliations, advance to a second election. In that election, the candidate who receives the greatest number of votes wins.

Keep reading

Virginia, Maryland add new state court judges

State courts in Virginia and Maryland are welcoming new judges to the bench following elections and vacancy appointments. Here’s a look at what’s changing:

Virginia: 

Seven new judges joined the Virginia Court of Appeals on Sept. 1. The Virginia General Assembly elected eight judges to the court on Aug. 10 with the eighth, Dominique Callins, scheduled to take office on Nov. 1, following the retirement of Judge William Petty.

This large number of new judges comes as a result of legislation passed by the General Assembly earlier this year that increased the number of judges on the Court of Appeals from 11 to 17.

Virginia and South Carolina are the two states that use legislative elections to select judges. This method is unique among selection types in that neither the governor (via appointment powers) nor the public (via direct elections) has a role in the selection process.

Maryland:

On Sept. 3, Gov. Larry Hogan (R) appointed Steven Gould to succeed Chief Justice Mary Ellen Barbera on the Maryland Court of Appeals, the state’s court of last resort. Barbera, who reached the state court’s mandatory retirement age of 70 years, is set to step down today, Sept. 10.

Gould, a judge of the Maryland Court of Special Appeals, is Hogan’s fifth nominee to the seven-member supreme court.

Hogan also announced the appointment of Justice Joseph Getty to the chief justice position. Getty will reach the mandatory retirement age in 2022.

State supreme court vacancies so far:

In 2021, there have been 16 state supreme court vacancies in 14 of the 29 states where replacement justices are appointed instead of elected. All 16 vacancies have been caused by retirements.

Nine vacancies—in Alaska, Arizona, Georgia, Idaho, Maryland, Missouri, Oklahoma, South Dakota, and Texas—are in states where a Republican governor appoints the replacement. The other seven vacancies—in Colorado, New Jersey, New Mexico, New York, and Oregon—are in states where a Democratic governor appoints the replacement.

Keep reading 

#FridayTrivia: Which of these states voted for the winning candidate in five of the six previous presidential elections?

Thirty-five states voted for the winning candidate in three of the six presidential elections from 2000 to 2020. Another 10states voted for the winning candidate in four. Five states were the most accurate, voting for the eventual winner in five of those six elections. One of those five states is listed below.

Which of these states voted for the winning candidate in five of the six previous presidential elections?

  1. Wyoming
  2. Iowa
  3. Colorado
  4. Hawaii


Documenting America’s Path to Recovery #297: September 9, 2021

Welcome to Documenting America’s Path to Recovery. Today we look at:

  • An extended COVID-19 emergency in Delaware
  • A ruling prohibiting school mask requirements bans in Florida
  • Vaccine distribution
  • School mask requirements
  • State proof-of-vaccination requirements and policies
  • Federal responses

We are committed to keeping you updated on everything from mask requirements to vaccine-related policies. We will keep you abreast of major developments—especially those affecting your daily life. Want to know what we covered Tuesday? Click here.

Since our last edition

What rules and restrictions are changing in each state? For a continually updated article, click here.

Delaware (Democratic trifecta): On Sept. 8, Gov. John Carney (D) extended the state’s public health emergency order for an additional 30 days.

Florida (Republican trifecta): On Wednesday, Sept. 8, Florida Second Circuit Court Judge John Cooper ruled the state Department of Education cannot enforce Gov. Ron DeSantis’ (R) order prohibiting mask requirements in public schools. Cooper ruled against DeSantis’ order on Aug. 27, but the ruling did not go into effect because DeSantis appealed the decision. Following a Sept. 8 hearing on the status of the order pending appeal, Cooper said the government did not present a compelling case for blocking his order. The ban on enforcement will remain in effect until the First District Court of Appeals hears DeSantis’ appeal.

Maryland (divided government): On Wednesday, Sept. 8, Gov. Larry Hogan (R) announced that residents 65 and older who live in congregate care settings, like nursing homes and residential drug treatment centers, are eligible to get a third COVID-19 shot. 

Vermont (divided government): On Wednesday, Sept. 8, Gov. Phil Scott (R) expanded a vaccine mandate to include all state employees. Previously, Scott’s vaccine mandate had applied only to state employees working in settings with vulnerable populations, such as the Vermont Department of Corrections. The expanded mandate takes effect Sept. 15. State employees who are not fully vaccinated will be required to undergo weekly COVID-19 testing.

Vaccine distribution

We last looked at vaccine distribution in the Sept. 7 edition of the newsletter. As of Sept. 8, the states with the highest vaccination rates as a percentage of total population (including children) were:

The states with the lowest rates were:

School mask requirements

Read more: School responses to the coronavirus (COVID-19) pandemic during the 2021-2022 academic year

We last looked at school mask requirements on Sept. 2. Since then, U. S. District Court for the Western District of Tennessee Judge Sheryl H. Lipman temporarily suspended Tennessee Gov. Bill Lee’s (R) executive order requiring schools to offer parents the option to opt-out of school mask requirements for their children.

State proof-of-vaccination requirements and policies

Read more: State government policies about proof-of-vaccination (vaccine passport) requirements

As COVID-19 vaccination rates have increased, state governments have enacted various rules around the use of proof-of-vaccination requirements. In some cases, states have banned state or local governments from requiring that people show proof-of-vaccination. Other states have assisted in the creation of digital applications—sometimes known as vaccine passports—that allow people to prove their vaccination status and, in some cases, bypass COVID-19 restrictions.  

Overview:

  • Twenty states have passed legislation or issued orders prohibiting proof-of-vaccination requirements at some or all levels of government. 
  • Four states have assisted in the creation of digital vaccination status applications. 

Since Sept. 2, no state has banned proof-of-vaccination requirements or rolled out a vaccine status application.   

Federal responses

Read more: Political responses to the coronavirus (COVID-19) pandemic, 2020

  • On Sept. 3, the Biden administration released details on the $65.3 billion “American Pandemic Preparedness: Transforming Our Capabilities” plan. The proposal lays the groundwork for future pandemic response, earmarking $24.2 billion to the development of new vaccines and $11.8 billion to antiviral therapeutics. The plan also calls for spending $15-20 billion on a hub housed within the U.S. Department of Health and Human Services that would coordinate a federal pandemic response.


Four states implement new mask requirements for both vaccinated and unvaccinated

Welcome to the Thursday, September 9, Brew. Here’s what’s in store for you as you start your day:

  1. Four more states implement universal indoor mask requirements
  2. Redistricting Roundup: Colorado redistricting commission releases new proposed congressional maps
  3. MA attorney general clears 17 ballot initiatives for signature gathering

Four additional states implement universal indoor mask requirements

In the past 30 days, four states—Illinois, New Mexico, Oregon, and Washington—have implemented new indoor mask requirements for both vaccinated and unvaccinated individuals. All four states are Democratic trifectas with Democrats holding the governorship and majorities in the state senate and state house.

  • In Illinois, Gov. J.B. Pritzker (D) announced the universal indoor mask requirement on Aug. 26, and the policy took effect on Aug. 30. Illinois had previously lifted its mask requirement, which lasted 407 days between May 1, 2020, and June 11, 2021.
  • Oregon Gov. Kate Brown (D) announced an indoor mask requirement for vaccinated and unvaccinated individuals on Aug. 11 and an outdoor mask requirement for vaccinated and unvaccinated individuals on Aug. 24. The orders took effect on Aug. 13 and Aug. 27, respectively. Oregon had previously lifted its mask requirement, which lasted for 365 days between July 1, 2020, and June 30, 2021.
  • On Aug. 17, New Mexico Gov. Michelle Lujan Grisham (D) also announced an indoor mask requirement for both vaccinated and unvaccinated individuals. It took effect on Aug. 20. Previously, New Mexico had an indoor mask requirement in place only for unvaccinated individuals. It had lifted the requirement for vaccinated individuals on May 14, 2021
  • In Washington, an indoor mask requirement for vaccinated and unvaccinated individuals took effect on Aug. 23. Gov. Jay Inslee (D) announced the policy on Aug. 18. The requirement does not apply to small gatherings or office environments where everyone is vaccinated and interaction with the public is rare or while working alone. Inslee previously lifted the indoor mask requirement for vaccinated individuals on May 13, 2021.

Across the country, three states currently have statewide mask orders for unvaccinated individuals, and seven states have statewide mask orders for vaccinated and unvaccinated individuals. All 10 of the states have Democratic governors.

In total, 39 states have issued statewide mask requirements. Thirty-two states—16 states with Republican governors and 16 states with Democratic governors—have allowed statewide orders to expire. Three states—Louisiana, Oregon, and Illinois—allowed a statewide order to fully expire and later reinstated a mask order.

Keep reading

Redistricting Roundup: Colorado redistricting commission releases new proposed congressional maps

Colorado: The Colorado Independent Redistricting Commission staff released a proposed congressional district map on Sept. 3. This is the first proposed map the commission released since the U.S. Census Bureau distributed block-level data from the 2020 census to states on Aug. 12. The commission is holding public hearings about the newly released maps during the week of Sept. 7. 

The Colorado Supreme Court previously ordered on July 26 that the Commission submit final congressional redistricting plans for approval no later than Oct. 1. Colorado was apportioned eight seats in the U.S. House of Representatives after the 2020 census—a net gain of one seat for the state.

Connecticut: The Connecticut General Assembly Reapportionment Committee will not create congressional and state legislative district maps by the state’s constitutional deadline of Sept. 15, according to The CT Mirror. If the deadline is not met, redistricting in Connecticut will be decided by a nine-member backup commission consisting of eight members appointed by the majority and minority leaders of each chamber of the legislature and a ninth member selected by the eight appointed commission members. Maps determined by the backup commission are not subject to legislative approval. Connecticut previously used this process in 2011 after the committee did not meet the deadline that year. 

Iowa: The Iowa Temporary Redistricting Advisory Commission announced it would release the first draft of proposed state legislative district maps on Sept. 16. The Iowa Constitution states that the Iowa Supreme Court has responsibility for legislative redistricting if the general assembly doesn’t enact new maps before Sept. 15. In April, the Iowa Supreme Court released a statement saying that “the supreme court tentatively plans to meet its constitutional responsibility by implementing a process which permits, to the extent possible, the redistricting framework…to proceed after September 15.”

Texas: Gov. Greg Abbott (R) announced on Sept. 7 that he was calling a special session of the state legislature to address redistricting and other issues beginning Sept. 20.

Two Democratic state senators filed a lawsuit in federal district court on Sept. 1 arguing that the legislature cannot legally redraw district maps during a special session since the Texas Constitution requires lawmakers to begin the process after the “first regular session after the publication of each United States decennial census.” The lawsuit asks the court to draw interim maps until the state’s next regular legislative session in January 2023.

Keep reading 

MA attorney general clears 17 ballot initiatives for signature gathering

On Sept. 1, Massachusetts Attorney General Maura Healey (D) announced that 17 ballot initiatives of the 30 filed were cleared for signature gathering. The 17 initiatives included 16 initiated state statutes aiming for the 2022 ballot and one initiated constitutional amendment that would appear on the 2024 ballot.

The initiatives cleared for signature gathering address the following issues:

  1. Changes to alcohol retail licensing,
  2. Compensation of chief executive officers of hospitals,
  3. Hospital operating margin limits,
  4. App-based drivers’ employment classification,
  5. Voter identification,
  6. Hate crimes against first responders,
  7. Commercial retail of fireworks,
  8. Whale and sea turtle safe fishing gear,
  9. Gasoline supply,
  10. Sale of discounted alcoholic beverages,
  11. Corporate tax disclosures,
  12. Right to counsel in eviction proceedings, 
  13. Tax credits for individuals who buy zero-emission vehicles, home heating systems, and home solar-powered electricity, and
  14. No-excuse absentee voting.

In Massachusetts, the number of signatures required to qualify an indirect initiated state statute for the ballot is equal to 3.5% of the votes cast for governor in the most recent gubernatorial election. No more than one-quarter of the verified signatures on any petition can come from a single county. The process for initiated state statutes in Massachusetts is indirect, which means the legislature has a chance to approve initiatives for which enough signatures are collected without the measure going to the voters. In Massachusetts, signatures for initiated state statutes are collected in two rounds.

The deadline to submit the first round of signatures to the secretary of state is Dec. 1, 2021. Prior to submitting signatures to the secretary of state, the signatures need to be submitted to local registrars by Nov. 17, 2021. If the legislature does not adopt the proposed law by May 4, 2022, petitioners then have until July 6, 2022, to request additional petition forms and submit the second round of signatures.

Proposed constitutional amendments have just one round of signature gathering with the same requirement and deadline as the first round for statutes. If enough signatures are submitted by the deadline, the initiative goes to the legislature, where 25% of all legislators, with senators and representatives voting jointly, must approve the amendment in two successive sessions. If this requirement is met, the initiative goes on the ballot at the next general election. Because of this unique requirement, the earliest an initiated constitutional amendment can reach the ballot is two years following signature submission.

Between 1996 and 2020, an average of three measures appeared on the ballot in Massachusetts during even-numbered election years. About 54% (22 of 41) of the total number of measures that appeared on statewide ballots were approved, and about 46% (19 of 41) were defeated.

Keep reading



What voters had to say 65 years ago today

Welcome to the Wednesday, September 8th, Brew. Here’s what’s in store for you as you start your day:

  1. Today in ballot measure history: North Carolina voters approve four constitutional amendments, North Dakota voters consider seven
  2. Texas Legislature refers constitutional amendment to May 2022 ballot 
  3. August 2021 breakdown of state legislative party membership

Today in ballot measure history: North Carolina voters approve four constitutional amendments, North Dakota voters consider seven

Sixty-five years ago today, on Sept. 8, 1956, voters in North Carolina approved four amendments to the state constitution. The General Assembly referred each measure to the ballot. Here’s a quick look at what voters approved.

  • Amendment 1 guaranteed state legislators compensation of $15 for each day the legislature was in session up to 120 days, the equivalent of $149.45 in 2021 dollars. Floor leaders were guaranteed compensation of $20. The amendment was approved 71.3% to 28.7%, the narrowest of any of the four. Today, North Carolina state legislators receive a per diem of $104 in addition to a $13,951 annual salary.
  • Amendment 2 required the biennial legislative session to begin on the first Wednesday after the first Monday in February. The amendment was approved 81.9% to 18.1%.
  • Amendment 3 was approved 85.4% to 14.6%. It allowed married women to execute any powers of attorney their husbands specified. 
  • The Special Session Amendment was approved 82.3% to 17.8%. This amendment gave the state government authority to provide funds to help cover the cost of private education and provided a system for residents to call a local election to forbid local private schools from participating in the funding program. The amendment was part of a series of measures known as the Pearsall Plan that shared the objective of limiting court-mandated racial integration of North Carolina schools.

Nearly 20 years later, on Sept. 7, 1976, voters in North Dakota would consider seven constitutional amendments. The state legislature referred all but one of the amendments to the ballot.

Voters approved five of those amendments, including a district residency requirement for state senators, an amendment specifying a time when the state’s legislative session should meet, and an amendment allowing for limited forms of gambling.

Amendment 5, which voters rejected 62.1% to 37.9%, would have abolished the office of superintendent of public instruction and created a board of public education and a board of higher education. The other rejected amendment would have set a hard cap on the legislature’s spending between 1975 and 1979. Today, all 50 states have a statewide superintendent of public instruction, and the position is elected in 12.

Keep reading

Texas Legislature refers constitutional amendment to May 2022 ballot 

Speaking of ballot measures, here’s an interesting development from this year’s landscape.

Texas voters will decide on whether to amend the state constitution to reduce property tax rates for elderly and disabled residents in a May 2022 referendum. The state legislature voted to approve the amendment for the ballot on Aug. 26.

This is the first ballot measure to appear on an even-numbered year’s ballot in Texas since 2014. Between 1985 and 2020, there were 10 measures on the Texas ballot in even-numbered years and 251 in odd-numbered years.

State Sen. Paul Bettencourt (R), the author of the amendment, said there had not been enough funding to pass the bill during the regular session and the walkout House Democrats carried out earlier in the summer had delayed the special session’s consideration of the bill. Bettencourt said had the walkout not occurred, the amendment could have been on the November 2021 ballot.

Under Texas law, school property taxes are frozen for property owners when they turn 65 and for disabled owners when they acquired the property. However, because the state approved a reduction in property tax rates in 2019, many elderly and disabled Texans now pay school property tax at higher rates. The amendment on the ballot would reduce those rates to match the statewide cuts.

In the state Senate, all 18 Republicans and 11 of the 13 Democrats voted to approve the measure. In the state House, 80 of the 82 Republicans and 36 of the 66 Democrats voted in favor. No state legislators voted against the measure.

Legislators from both parties criticized the process involved in getting the amendment to the ballot. State Rep. Donna Howard (D) said she had proposed a similar amendment during the regular session and that the Republican majority had defeated it.

Keep reading 

August 2021 breakdown of state legislative party membership: 54.26% Republicans, 44.72% Democrats

54.26% of all state legislators are Republicans, and 44.72% are Democrats, according to Ballotpedia’s August partisan count of the nation’s 7,383 state legislators.

Ballotpedia tallies the partisan balance of state legislatures at the end of every month. Partisan balance refers to which political party holds a majority in each chamber. Republicans control 61 chambers, while Democrats hold 37. The Alaska House of Representatives is the nation’s only chamber with a multipartisan power-sharing coalition.

Nationally, state legislatures have 1,957 state senators and 5,363 state representatives. Democrats hold 863 state Senate seats and 2,439 state House seats, a loss of four seats in each chamber since the end of July. Republicans hold 4,006 of the 7,383 total state legislative seats—1,091 state Senate seats (a gain of one since July) and 2,915 state House seats (a decrease of five).

Independent or third-party legislators hold 39 seats, of which 32 are state House seats, and seven are state Senate seats. There are 36 vacancies.

During August, Democrats saw a net decrease of eight seats, and Republicans saw a net decrease of four seats. Compared to August 2020, state legislatures are 2.06% less Democratic (46.78% to 44.72%) and 2.26% more Republican (52.00% to 54.26%).  

Keep reading



Economy and Society: Regulatory scrutiny over ESG-related sustainability claims intensifies

ESG Developments This Week

In Washington, D.C., and around the world

Regulatory scrutiny over ESG-related sustainability claims intensifies

As was noted in last week’s newsletter, the SEC is investigating DWS (the asset management arm of Deutsche Bank) for alleged ESG-related fraudclaims DWS rejects. Many ESG observers believe that the DWS probe is the beginning of a larger SEC crackdown on potentially deceptive ESG promises. On September 1, for example, Bloomberg Green noted the following:

“Pressure is increasing on managers of ESG-labeled investment funds to show they’re being truthful with customers about what they’re selling.

The heat was really turned up last week when the U.S. Securities and Exchange Commission and BaFin, Germany’s financial regulator, initiated a probe into allegations that Deutsche Bank AG’s DWS Group asset-management arm has been misstating the environmental—and possibly the social—credentials of some of its ESG-labeled investment products. Regulators have signaled the review is at an early stage, and DWS has rejected claims it overstated ESG assets.

Since then, researchers have raised questions about the credentials of money managers who claim they are marketing funds designed to address the climate crisis and social injustice.

A London-based nonprofit called InfluenceMap said more than half of climate-themed funds are failing to live up to the goals of the Paris Agreement….

InfluenceMap found that 55% of funds marketed as low carbon, fossil-fuel free and green energy exaggerated their environmental claims, and more than 70% of funds promising ESG goals fell short of their targets.

The SEC formed a task force in March aimed at investigating potential misconduct related to companies’ sustainability claims. Gary Gensler, who took over the agency in April, has said his staff is working on a rule to boost climate disclosures by stock issuers, and that the regulator remains focused on ESG issues.”

On September 3, Bloomberg’s market-news division reported that asset management firms didn’t have to wait long to learn whether DWS would be a one-off investigation or the start of a trend on the federal government’s part:

“U.S. regulators have long said they’re dubious about the green and socially conscious labels that Wall Street applies to $35 trillion in so-called sustainable assets. Now, the watchdogs are hunting for proof that they’re right.

For several months, Securities and Exchange Commission examiners have been demanding that money managers explain the standards they use for classifying funds as environmental, social and governance-focused, said people familiar with the matter. The review is the SEC’s second into possible ESG mislabeling since last year — showing the issue is a priority for the agency and a reason for the industry to worry about a rash of enforcement actions. 

The SEC is following the money: Few businesses are booming in high finance like sustainable investing, as governments, pension plans and corporations all seek to lower their carbon footprints and be better public citizens. Amid the rush for dollars, more and more ESG insiders have started sounding alarms that a lot of the marketing is hype, a term known in the industry as greenwashing.

Letters that the SEC sent out earlier this year point to some of the agency’s top concerns, said the people who asked not to be named because the correspondence isn’t public. 

Investment advisers were asked to describe in painstaking detail the screening processes they use to ensure assets are worthy of ESG designations, one of the people said. The SEC also wants to know how firms are grappling with different jurisdictions’ requirements. For instance, Europe has specific standards that money managers must adhere to in making sure assets are green or sustainable. But in the U.S., it’s much murkier. 

Another SEC query sought information about ESG compliance programs, policies and procedures, a different person said. The SEC additionally asked about statements made by managers in their marketing materials or regulatory filings. 

The SEC has shown it’s keen to bring cases, forming a taskforce of enforcement lawyers in March whose focus includes fund managers’ ESG disclosures.” 

Both of these stories followed an August 26 piece published by MarketWatch (a Dow Jones & Company financial news site), also suggesting that the DWS matter would be the start of a something longer:

“This is the first of many more to come,” Amy Lynch, a former SEC regulator and president of FrontLine Compliance, told MarketWatch. “The SEC has been letting the industry know that this is an area they’re looking into for the past year. They’ve given every warning.”…

Under the chairmanship of Gary Gensler, the SEC has made it a top priority to regulate what public companies must disclose about risks related to climate change and the environment, new information about its workforce policies and other policies that impact social issues.

At the same time, it has telegraphed its intention to hold investment managers responsible for clearly disclosing the principles they use to develop sustainable investment funds.

“When it comes to sustainability-related investing…there’s currently a huge range of what asset managers might mean by certain terms and what criteria they use,” Gensler said in a speech last month. “I think investors should be able to drill down to see what’s under the hood of these funds.”

Meanwhile, in the United Kingdom

On September 5, London’s Mail on Sunday newspaper reported that British Prime Minister Boris Johnson has decided to heed the advice of Tariq Fancy’s advice to make climate change finances issues a government matter, while, at the same time, maintaining the idea that investments can power a more sustainable economy. Fancy is a former CIO for sustainability at BlackRock, who has spoken publicly about his belief that ESG investing is, at best, in his view, what he describes as a dangerous distraction. The paper reported that:

“Boris Johnson will meet pension and insurance bosses in Downing Street next month to thrash out plans to channel billions of pounds of retirement funds into ‘green’ projects. 

A source said there will be in-depth discussions about how pension cash can be diverted into initiatives such as installing solar panels in homes and providing charging points for electric cars. 

More than £1trillion is sitting in defined contribution pensions – including workplace schemes.

The Government is hoping to unlock more of this to invest in Britain’s green economy and ‘build back better’ initiative. Another £2trillion is in annuities and defined benefit schemes. 

The agenda is expected to include more detail on funnelling pension money into various projects to reach ‘net zero carbon’ by 2050 – the commitment to reduce greenhouse gases to offset carbon emissions in order to combat climate change. 

Sources said the trade body the Association of British Insurers is separately meeting with City Minister John Glen this week to talk over the new push.

A source said: ‘This needs a scheme, and the Government is probably best placed to do it because you need a supply chain lined up including investment and the people to implement projects. There is a need to coordinate and get the right types of projects going.’ 

But the plans are expected to spark controversy as many of these investments are illiquid – meaning they are difficult to buy and sell – which could leave pension savers with some of their cash trapped in assets.”

In the Spotlight

Wages before sustainability?

For much of its history, ESG has been nearly synonymous with the idea of what is often called by its advocates sustainable investing. However, according to a recent study by Cerulli Associates, an American asset management research company based in Boston, when affluent American retail investors identify the factors that most influence their investment decisions, they prefer companies that pay what they deem are fair wages over companies that are keenly environmentally aware. It’s not that they don’t appreciate environmental friendliness, according to the study. It’s just that they appreciate what they deem the fair treatment of workers more:

“While the majority (53%) of affluent respondents indicate that investing in an environmentally responsible firm is important to them, 65% of respondents favor investments in companies that pay their workers a fair/living wage. “This result highlights one of the biggest challenges in promoting ESG or sustainable investing products,” says Smith. “When presented with these offerings, investors and advisors get hung up on the ‘E’ and rarely consider the ‘S’ or ‘G.’” Particularly notable in these results are indications of interest 16 to 25 percentage points higher among respondents in the three oldest cohorts compared with their overall ESG interest levels.”



Documenting America’s Path to Recovery #296: September 7, 2021

Welcome to Documenting America’s Path to Recovery. Today we look at:

  • Changes in coronavirus restrictions in Nevada
  • An extended vaccine incentive initiative in Wisconsin
  • Vaccine distribution
  • Lawsuits about state actions and policies 
  • State-level mask requirements
  • COVID-19 emergency health orders

We are committed to keeping you updated on everything from mask requirements to vaccine-related policies. We will keep you abreast of major developments—especially those affecting your daily life. Want to know what we covered Thursday? Click here.

Since our last edition

What rules and restrictions are changing in each state? For a continually updated article, click here.

Colorado (Democratic trifecta):

  • On Sept. 4, Gov. Jared Polis (D) extended a coronavirus executive order that gives tenants with pending applications for rental assistance 30 days to make late rent payments.
  • On Sept. 2, Polis (D) announced that primary care providers can receive grant funding to support coronavirus vaccination efforts. Polis also announced a testing incentive program for students in Colorado. Students who have opted in to the testing program can receive a $25 gift card for their first coronavirus test, and a $10 gift card for each subsequent test.

Connecticut (Democratic trifecta): On Sept. 3, Gov. Ned Lamont (D) extended the full vaccination deadline for staff in long-term care facilities to Sept. 27. The original deadline was Sept. 7.

Illinois (Democratic trifecta): On Sept. 3, Gov. J.B. Pritzker (D) extended the first dose vaccination deadline for healthcare workers, teachers, and school staff to Sept. 19. The original deadline was Sept. 5.

Kentucky (divided government): On Sept. 7, a special session of the Kentucky State Legislature began to discuss the extension of the state’s coronavirus state of emergency, the governor’s authority to issue indoor mask requirements, and other coronavirus-related issues. Gov. Andy Beshear (D) called the session on Sept. 4.

Maine (Democratic trifecta): On Sept. 2, Gov. Janet Mills (D) extended the full vaccination deadline for healthcare workers to Oct. 29. The previous deadline was Oct. 2.

Nevada (Democratic trifecta): On Thursday, Sept. 2, Gov. Steve Sisolak (D) issued an order allowing conventions with more than 4,000 people not to require masks if all attendees are fully vaccinated. Under the rules, organizers who require proof of vaccination can admit attendees who’ve only received one shot of the Pfizer or Moderna vaccine, but those people must still wear masks indoors. 

New York (Democratic trifecta): 

  • On Sept. 2, Gov. Kathy Hochul (D) signed a residential and commercial coronavirus-related eviction moratorium into law. The moratorium would be effective through Jan. 15, 2022.
  • On Sept. 2, the New York Department of Health released a regulation requiring teachers and school staff to be vaccinated or receive regular coronavirus testing.

Rhode Island (Democratic trifecta): On Sept. 3, Gov. Daniel McKee (D) extended Rhode Island’s coronavirus state of emergency through Oct. 2.

South Carolina (Republican trifecta): On Sept. 2, the South Carolina Supreme Court rejected the city of Columbia’s challenge to the state’s ban on mask requirements. In the opinion, the court found that the mask requirement ban, which was established in a state budget amendment, did not violate a rule requiring state laws address a single primary subject.

Tennessee (Republican trifecta): On Friday, Sept. 3, U. S. District Court for the Western District of Tennessee Judge Sheryl H. Lipman ruled in favor of two students who sued Gov. Bill Lee (R) after he issued an order allowing students to opt out of school mask mandates. Lipman ruled Lee’s order violated the students’ rights under the Americans with Disabilities Act (ADA). 

Washington (Democratic trifecta): On Friday, Sept. 3, Gov. Jay Inslee (D) issued an order prohibiting local government agencies, officials, and landlords from banning mask requirements or proof-of-vaccination requirements. 

Wisconsin (divided government): On Friday, Sept. 3, Gov. Tony Evers (D) extended the statewide vaccine incentive initiative through Sept. 19. The initiative allows anyone 12 and older to claim a $100 Visa gift card if he or she gets the first dose of a COVID-19 vaccine. 

Vaccine distribution

We last looked at vaccine distribution in the Sept. 2 edition of the newsletter. As of Sept. 3, the states with the highest vaccination rates as a percentage of total population (including children) were:

The states with the lowest rates were:

Lawsuits about state actions and policies

Read more: Lawsuits about state actions and policies in response to the coronavirus (COVID-19) pandemic, 2020

Overview:

To date, Ballotpedia has tracked 1,879 lawsuits in 50 states dealing in some way with the COVID-19 outbreak. Court orders have been issued, or settlements have been reached, in 578 of those lawsuits. 

Since Aug. 31, we have added nine lawsuits to our database. We have also tracked an additional four court orders and/or settlements. 

Details:

  • Norris v. Stanley: On Aug. 31, Judge Paul Maloney, of the U.S. District Court for the Western District of Michigan, declined to block Michigan State University’s (MSU) COVID-19 vaccine mandate. MSU employee Jeanna Norris alleged,  that she should be exempted from the vaccine mandate because she has natural antibodies from a previous infection. MSU’s vaccine policy requires all MSU faculty, staff, and students “to be vaccinated against COVID-19 with an FDA-authorized or WHO-approved vaccine.” While the mandate does provide for limited medical and religious exceptions, it specifically excludes natural immunity as a qualifying exemption. Norris argued MSU was “forcing me to choose between performing my professional duties to the best of my ability and protecting my personal health” and “between protecting my constitutional right to bodily autonomy, privacy and protection and keeping my job.” Norris alleged “MSU cannot establish a compelling governmental interest in overriding personal autonomy and constitutional rights.” Maloney said Norris did not show a “substantial likelihood of success on the merits.” Jenin Younes, litigation counsel for the New Civil Liberties Alliance, which is representing Norris, said, “We have faith that when the Court has the opportunity to review the insurmountable evidence that supports the existence, durability, and robustness of natural immunity, it will recognize that MSU’s policy violates the constitutional rights of Ms. Norris and others in her position.” Maloney is George W. Bush (R) appointee.

State mask requirements

We last looked at face coverings in the Aug. 31 edition of the newsletter. Since then, no changes to statewide mask requirements occurred. As of Sept. 7, masks were required in ten states with Democratic governors. Thirteen states with Democratic governors and all 27 states with Republican governors had no state-level mask requirements in effect.

COVID-19 emergency health orders

Read more: State emergency health orders during the coronavirus (COVID-19) pandemic, 2021

Governors and state agencies in all 50 states issued orders declaring active emergencies in response to the coronavirus pandemic. These orders allowed officials to access resources, like stockpiles of medical goods and equipment, unavailable to them during non-emergencies and temporarily waive or suspend certain rules and regulations. 

Overview

  • COVID-19 emergency orders have expired in 24 states. Emergency orders remain active in 26 states.

Since Aug. 31, no state has ended or enacted a COVID-19 emergency order.