March 23, 2020: Indiana moved its primary election from May 5 to June 2. President Donald Trump activated the U.S. National Guard in New York, California, and Washington.
Here are the presidential primary updates you need to know:
Indiana: Governor Eric Holcomb (R), Secretary of State Connie Lawson (R), Republican Party Chairman Kyle Hupfer, and Democratic Party Chairman John Zody announced the postponement of Indiana’s primary election, originally scheduled for May 5, to June 2.
Which state has lost the most DNC delegates since the 2016 convention?
“America has a history of unifying in trying times and rallying around the president. But after years of deep division, in the earliest, head-spinning days of the pandemic, a fractured electorate largely viewed Trump’s performance through the lens they chose long ago. But the stakes are higher than they’ve ever been. The body count will rise; the economy will almost certainly crater. Trump’s political fate may be left up to the sliver of moderates in the middle, who will choose whether to blame him for the crisis spiraling on his watch.”
– Claire Galofaro and Tamara Lush, Associated Press
Biden‘s campaign released a video featuring Ron Klain, former White House Ebola response coordinator under Barack Obama, criticizing President Donald Trump’s handling of the coronavirus outbreak and praising Biden’s proposals. Also, the American Federation of Teachers and the Congressional Hispanic Caucus endorsed Biden.
Sanderslive-streamed a virtual roundtable on the coronavirus with Reps. Alexandria Ocasio-Cortez (D-N.Y.), Ilhan Omar (D-Minn.), and Rashida Tlaib (D-Mich.). Sanders’ campaign also announced it had raised more than $2 million in two days for charities working on coronavirus relief.
Republicans
Donald Trumpannounced Sunday he would activate the U.S. National Guard for New York, Washington, and California—the states with the most coronavirus outbreaks.
Ballotpedia’s Weekly Presidential News Briefing: March 14-20, 2020
Every weekday, Ballotpedia tracks the news, events, and results of the 2020 presidential election.
Here’s the latest from the campaign trail.
Notable Quote of the Week
“The perspective here should be: How do we hold the election in November? Not whether. We had elections during World War II. We held elections during the Civil War. We’re going to hold an election this year. We’ve got to figure out how to do it and to do it in a way that gives us a result that conforms to the idea that it’s the ‘will of the people.’”
– Edward Foley, Ohio State University election law professor
Here are the presidential primary updates you need to know:
Louisana: Secretary of State Kyle Ardoin announced that Louisiana was rescheduling its presidential primary from April 4 to June 20. Louisiana was the first state to delay its presidential primary in response to the coronavirus.
Georgia: Secretary of State Brad Raffensperger announced on Saturday that Georgia was postponing its presidential primary from March 24 to May 19.
Ohio: Gov. Mike DeWine announced that polls would be closed on Tuesday, March 17, by the order of the state Department of Health. This action came after a state judge declined to postpone the primary election. The election was postponed to June 2.
Kentucky: Secretary of State Michael Adams announced that Kentucky’s primary, originally scheduled for May 19, would be postponed to June 23.
Maryland: Gov. Larry Hogan announced that Maryland’s primary, originally scheduled for April 28, would be postponed to June 2.
Connecticut: Gov. Ned Lamont announced on Thursday that Connecticut would move its presidential primary from April 28 to June 2.
Biden wins primaries in Arizona, Florida, and Illinois
Three states—Arizona, Florida, and Illinois—held primaries on Tuesday. Joe Biden won all three Democratic primaries and ended the night with at least 281 of the 441 pledged delegates available. Bernie Sanders is projected to receive at least 140 pledged delegates.
Sanders campaign manager Faiz Shakir said on Wednesday, “The next primary contest is at least three weeks away. Sen. Sanders is going to be having conversations with supporters to assess his campaign.”
In the Republican primary, Donald Trump crossed the delegate threshold necessary to clinch the Republican nomination—1,276 delegates—with his primary win in Florida on Tuesday.
Bill Weldsuspended his presidential campaign on Wednesday. He won one delegate from Iowa throughout the Republican primary process.
Biden, Sanders discuss coronavirus pandemic in first head-to-head debate
Joe Biden and Bernie Sanders met in their first head-to-dead Democratic presidential primary debate. Originally scheduled to take place in Arizona, the debate was moved to Washington, D.C., due to public health concerns with the coronavirus pandemic.
Biden and Sanders discussed the pandemic, healthcare, the economy, climate change, and foreign policy. Both candidates spoke for approximately 46 minutes.
For highlights from the debate for each candidate, click here.
No date, location, or other details have been released about the 12th and final Democratic primary debate.
Gabbard suspends campaign, endorses Biden
Tulsi Gabbardsuspended her presidential campaign on Thursday and endorsed Joe Biden. “Today, I’m suspending my presidential campaign, and offering my full support to Vice President Joe Biden in his quest to bring our country together,” she said in a statement.
Cristóbal Alex is a Democratic advisor with experience in politics, philanthropy, and law. Alex graduated from the University of Washington School of Law in 2001 with a J.D.
Previous campaign work:
2016 Hillary Clinton presidential campaign, deputy director of voter outreach and mobilization
Other experience:
2014-2019: Latino Victory Project, founding president
2011-2014: Ford Foundation, program officer
2009-2011: Open Society Foundations, program officer
2006-2009: National Campaign to Restore Civil Rights, director
March 16, 2016: Fox News canceled its Republican presidential debate in Salt Lake City after Donald Trump and then John Kasich announced they would not attend.
March 17, 2016: Ted Cruz released two ads in Utah and Arizona. One featured an endorsement from Sen. Mike Lee and the other focused on immigration.
March 18, 2016: U.S. District Court Judge Jill Parrish dismissed a lawsuit challenging Ted Cruz’s eligibility to run for president.
March 19, 2016: Donald Trump held a rally outside of Phoenix, Arizona.
March 20, 2106: John Kasich said he believed that the Republican National Convention would be a contested convention.
How many debates were held in the 2016 Democratic primary?
On March 12, two Alaska state employees filed a federal lawsuit against the Alaska State Employees Association, alleging that the union has continued to deduct dues from their paychecks against their express wishes.
Who are the parties to the suit?
The plaintiffs are Linda Creed, an employee of the Alaska Department of Environmental Conservation, and Tyler Riberio, an employee of the Alaska Department of Transportation. Attorneys from the Alaska Policy Forum and the Liberty Justice Center represent the plaintiffs.
The defendants are the Alaska State Employees Association, an affiliate of the American Federation of State, County, and Municipal Employees, and Kelly Tshibaka, in her official capacity as commissioner of the Department of Administration.
What is at issue?
Alaska’s Public Employment Relations Act (PERA) allows the automatic deduction of union dues or fees from an employee’s paycheck upon his or her written authorization. The dues deduction authorization form used by the Alaska State Employees Association establishes the following restrictions on rescinding the authorization:
“
This voluntary authorization and assignment shall be irrevocable, regardless of whether I am or remain a member of ASEA, for a period of one year from the date of execution or until the termination date of the collective bargaining agreement (if there is one) between the Employer and the Union, whichever occurs sooner, and for year to year thereafter unless I give the Employer and the Union written notice of revocation not less than ten (10) days and not more than twenty (20) days before the end of any yearly period.[1]
”
On June 27, 2018, the Supreme Court of the United States issued its ruling in Janus v. AFSCME, finding that public-sector unions cannot compel workers to pay fees to support non-political union activities (contract administration, grievance arbitration, etc.).
On Aug. 27, 2019, Alaska Attorney General Kevin Clarkson (R) issued a formal opinion establishing that, in light of Janus, the state must obtain affirmative consent from all employees in order to deduct dues or fees from their paychecks.
On September 26, 2019, pursuant to Clarkson’s opinion, Governor Mike Dunleavy (R) issued an administrative order directing Tshibaka to secure consent from employees in order to continue dues deductions. Creed and Riberio withdrew their consent, and the state stopped deducting dues from their paychecks.
On Oct. 3, 2019, a state trial court issued a temporary restraining order barring implementation of Dunleavy’s order. Dues deductions resumed for both Creed and Riberio.
The plaintiffs argue the existing restrictions violate their First Amendment rights. They are asking for an injunction against the restrictions. They also seek restitution for dues paid to the union prior to Janus, arguing their “consent to dues collection was not ‘freely given’ because it was given on an unconstitutional choice of either paying the union as a member or paying the union agency fees as a non-member.”
What are the reactions?
Daniel Suhr, attorney at the Liberty Justice Center, said, “These workers represent thousands of Alaska state employees who were finally given the right to stop paying union dues only to swiftly have that right stripped again. The Supreme Court was clear in Janus; it’s time for unions to honor workers’ rights and respect their decisions.” Alaska State Employees Association has not commented publicly on the suit as of March 20. In response to the court order enjoining Dunleavy’s order, Jake Metcalfe, executive director of the Alaska State Employee Association, said, “Our position is the right position. The governor was trying to take rights away from his own employees and that’s never a good thing.”
What comes next?
The case was filed in the United States District Court of the District of Alaska. It has been assigned to Judge H. Russel Holland, appointed to the court by President Ronald Reagan (R). The case name and number are Creed v. Alaska State Employees Association (3:20-cv-00065) .
We are currently tracking 93 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. Bills are listed in alphabetical order, first by state then by bill number.
California AB2307: This bill would require public-sector employers to provide union representatives paid release time to conduct certain union activities.
Assembly Public Employment and Retirement Committee hearing (scheduled for March 18) postponed on March 16.
Democratic sponsorship.
California SB1173: Existing law requires public employers to provide unions with contact information for all employees within the bargaining unit. Existing law also requires that public employers provide unions with contact information for new employees within 30 days of hire. This bill would impose liability on employers who violate these provisions 3 or more times in a 12-month period.
Senate Labor, Public Employment, and Retirement Committee hearing (scheduled for March 25) postponed on March 18.
Democratic sponsorship.
Florida H0001: This bill would require employees who wish to join a union to sign a membership authorization form. It would require unions to revoke an employee’s membership upon his or her written request. It would also require a signed authorization to deduct dues from an employee’s salary.
Indefinitely postponed and withdrawn from consideration March 14 (dead).
Republican sponsorship.
Florida S0804: This bill would require employees who wish to join a union to sign a membership authorization form. It would require unions to revoke an employee’s membership upon his or her written request. It would also require a signed authorization to deduct dues from an employee’s salary.
Indefinitely postponed and withdrawn from consideration March 14 (dead).
Republican sponsorship.
New Jersey S2124: This bill would payroll deduction of union dues from wages or salaries of public employees.
Introduced and referred to Senate Labor Committee March 16.
Cristóbal Alex is a Democratic advisor with experience in politics, philanthropy, and law. Alex graduated from the University of Washington School of Law in 2001 with a J.D.
Previous campaign work:
2016 Hillary Clinton presidential campaign, deputy director of voter outreach and mobilization
Other experience:
2014-2019: Latino Victory Project, founding president
2011-2014: Ford Foundation, program officer
2009-2011: Open Society Foundations, program officer
2006-2009: National Campaign to Restore Civil Rights, director
“Illinois was the one state that voted this past Tuesday that does not make extensive use of early voting or voting by mail. Perhaps it’s no surprise then that turnout was lower in Illinois than it was four years ago. Only about 1.5 million people turned out to vote in Illinois’ Democratic primary. Four years ago, a little over 2 million people voted.
That’s a turnout drop of 25%. Taking into account the change in the number of eligible voters, as compiled by Michael McDonald of the United States Elections Project, the drop was still 25%. Illinois had the worst turnout relative to 2016 of any state that has voted so far.”
– Harry Enten, CNN Politics senior writer and analyst
Democrats
Former 2020 presidential candidate and Sen. Kirsten Gillibrand (N.Y.) endorsedJoe Biden. The Steady State, a group of 80 Democratic, Republican, and independent national security officials, also endorsed Biden.
Tulsi Gabbardsuspended her presidential campaign on Thursday and endorsed Biden. “Today, I’m suspending my presidential campaign, and offering my full support to Vice President Joe Biden in his quest to bring our country together,” she said in a statement.
Bernie Sandersproposed the government cover 100% of small- and mid-sized businesses’ payroll if they do not lay off employees during the pandemic. He also said all student loan payments should be canceled during this period.
Republicans
The pro-Donald Trump super PAC, America First Action, said it is focusing on earned media during the coronavirus pandemic rather than spending any of its $300 million on negative ads against Biden.
Here are the presidential primary updates you need to know:
Delaware: Delaware election officials said Wednesday that the state was planning to continue with its April 28 primary. “We’re continuing to monitor the situation at this point and plan to proceed as scheduled,” state Elections Commissioner Anthony Albence said.
“With Biden running away with it now, this would have been a good time to define him right off the bat. But it won’t break through now, nor would it look good. This hiatus in many ways helps Biden.”
– Ari Fleischer, George W. Bush White House press secretary
Kirkland & Ellis senior partner Jon Henes, the former national finance chair for Kamala Harris’ presidential campaign, is forming a fundraising committee with other corporate restructuring attorneys to support Biden’s campaign.
Bernie Sanders campaign manager Faiz Shakir said on Wednesday, “The next primary contest is at least three weeks away. Sen. Sanders is going to be having conversations with supporters to assess his campaign.”
Republicans
The Wall Street Journalreported on Donald Trump’s changing re-election strategy following the coronavirus pandemic.
The Lincoln Project, a group formed by anti-Trump Republicans, released an ad attacking Trump that compares him to a virus.
Bill Weldsuspended his presidential campaign on Wednesday. He won one delegate from Iowa throughout the Republican primary process.
This week: Ohio, Kentucky, and Maryland postpone primaries, NRA, Club for Growth split endorsements in Senate runoff in Alabama, and former Rep. Brat endorses Freitas in VA-07 convention contest.
Election updates
Ohio among three states to postpone primaries—decision made less than 24 hours before polls open
Ohio Gov. Mike DeWine (R) announced Monday night that polls would be closed on Tuesday by the order of the state health director. Secretary of State Frank LaRose (R) postponed in-person voting to June 2.
Ohio was scheduled to hold primaries for president, the state’s 16 U.S. House seats, both chambers of the state legislature, the Ohio Supreme Court, and local elections Tuesday.
During this time when we face an unprecedented public health crisis, to conduct an election tomorrow would force poll workers and voters to place themselves at an unacceptable health risk of contracting coronavirus.
Later Monday, Kentucky Secretary of State Michael Adams (R) announced that he and Gov. Andy Beshear (D) had agreed to postpone the state’s primary from May 19 to June 23.
On Tuesday, Gov. Larry Hogan (R) postponed Maryland’s primary from April 28 to June 2. The special election for Elijah Cummings’ U.S. House seat will still take place April 28 but will be conducted via mail-in ballot only.
For an account of events related to the postponements, and for details on changes to the election calendar in other states, click here.
Election results
Here are some key primary results from March 17.
Illinois’ 6th Congressional District:Jeanne Ives defeated Gordon “Jay” Kinzler in the Republican primary for Illinois’ 6th Congressional District. With 99% of precincts reporting, Ives had received 70.8% of the vote to Kinzler’s 29.2%.
Both candidates highlighted their military backgrounds and opposition to socialism. Ives graduated from West Point and came from a military family. She said, “Our family has served. So I’ll tell you what, we are all in to defeat any socialism that comes to sneak in the back door of this country.” Kinzler joined the U.S. Army Reserves and became a corporal. He said he entered the race out of a concern “that many in congress are promoting a socialist agenda that is taking our nation down a dangerous path.”
Incumbent Sean Casten (D) was unopposed in the March 17 Democratic primary. In the district’s 2018 general election, Casten won 54-47. Major race rating outlets vary in their assessments of the 2020 general election, with ratings ranging from Lean Democratic to Solid Democratic.
Illinois’ 14th Congressional District: Jim Oberweis won the Republican primary for Illinois’ 14th Congressional District, defeating six other candidates. Oberweis received 25.6% of the vote, followed by Sue Rezin with 22.8%, Catalina Lauf with 20.1%, Ted Gradel with 13.3%, and James Marter with 11.0%. Jerry Evans and Anthony Catella also ran in the primary.
Gradel, Oberweis, and Rezin led in fundraising and media activity, with the latter two candidates also receiving the majority of endorsements. Three groups—Illinois Conservatives PAC; Our Future, Our Fight PAC; and the New Prosperity Foundation—spent a combined $1.14 million opposing candidates in the race. Of that total, around $1.08 million was spent against Oberweis, roughly 94% of all oppositional satellite spending.
Illinois’ 15th Congressional District: Mary Miller won the Republican primary for Illinois’ 15th Congressional District. Four candidates ran. With 95% of precincts reporting, Miller had 57%, followed by Darren Duncan with 22%.
Incumbent John Shimkus (R) announced he would not seek re-election, leaving the district open.
Both Miller and Duncan highlighted their support for President Donald Trump’s agenda. Rep. Jim Jordan (R-Ohio), Rep. Mark Meadows (R-N.C.), and the House Freedom Fund endorsed Miller. The House Freedom Fund and its affiliated super PAC, House Freedom Action, spent $489,000 to support Miller. In response to the satellite spending, Duncan said, “Mary Miller has sold out central and southern Illinois for hundreds of thousands of dollars from D.C. special interests.” U.S. Reps. Mike Conaway (R-Texas) and Rick Crawford (R-Ark.) endorsed Duncan.
On the news
Where do Republican and conservative pundits and commentators disagree? Each week, we bring you excerpts that highlight differing views.
“As a particularly outspoken opponent of universal basic income, I would emphasize:
Direct cash payments are the correct policy in this crisis and have nothing to do with UBI, whose entire premise (and greatest flaw) is that you know in advance you will receive it in perpetuity.
In the past I’ve made this point from the other direction, noting that short-term UBI pilots are bad tests of the UBI concept, precisely because they are random and short-term. Similarly, a crisis response does not share UBI’s characteristics or drawbacks.”
“[Sen. Mitt Romney] wants the government to give every citizen a one-time cash payment of $1,000. This is intended to boost consumer spending and provide economic stability for those hardest hit by the virus’s ample negative economic impacts, as well as help avoid the general slowdown it has caused from spiraling into an all-out recession.
But this is, frankly, a foolish idea. Welfare for the rich and other workers who remain relatively unaffected won’t help us avoid a recession. …
If we do decide that civil society and charity are unable to step up and fill in this void, a narrowly tailored government response specifically helping only those most harmed by the coronavirus is what’s needed.”
Former Rep. Brat endorses Freitas in VA-07 convention contest
Former Rep. David Brat (VA-07) endorsed state Del. Nick Freitas in the district’s Republican convention contest. The convention nominee will face incumbent Rep. Abigail Spanberger (D) in November.
Brat was first elected to represent Virginia’s 7th in 2014, the year he defeated then-House Majority Leader Eric Cantor in the Republican primary. Spanberger defeated Brat in the 2018 election 50% to 48%.
Before Spanberger took office, a Republican had represented the 7th District since 1971.
Brat said, “To beat Abigail Spanberger, we need a candidate that is a proven conservative leader, can articulate the conservative message, and has what it takes to overcome the millions of dollars that will pour into our district from billionaires like Michael Bloomberg as they try to save the congressional seat that they bought in 2018.”
Republicans in the 7th District will hold a nominating convention to select their nominee. The date is currently set as April 25. Delegates elected to the convention will choose the party’s general election nominee. Republican voters may run to be elected as convention delegates.
Nine candidates are currently running for the convention nomination. Freitas, a member of the state House of Delegates since 2016, is also backed by the Club for Growth PAC. Former Trump administration Deputy Assistant Secretary of Defense Andrew Knaggs, House of Delegates Member John McGuire, and nonprofit founder Tina Ramirez are among the candidates.
NRA, Club for Growth split endorsements in Senate runoff in Alabama
NRA representative Lars Dalseide said Sessions “has long been a stalwart defender of Second Amendment freedoms for law-abiding Alabamians.”
Club for Growth PAC President David McIntosh said Tuberville “is a principled, free market conservative who has the support of President Trump and has put together a great campaign to defeat Doug Jones.”
As we reported earlier, the president endorsed Tuberville March 10.
Sessions held the Senate seat for 20 years before the president appointed him U.S. attorney general in 2017. Sessions resigned in 2018 at Trump’s request. Tuberville is a former college football coach.
Tuberville received 33.4% of the vote to Sessions’ 31.6% in the March 3 primary. A candidate needed 50% to win the primary outright.
The runoff is currently scheduled for March 31. Secretary of State John Merrill has asked state attorney general Steve Marshall (R) for an opinion on whether the primary date can be postponed amid concerns around the coronavirus.
State executives
Former Montana Secretary of State Brad Johnson files to run for his old office
Former Montana Secretary of State Brad Johnson filed to run for his old office one day before the March 9 filing deadline, bringing the number of Republican candidates to six.
Johnson was elected as secretary of state in 2004 and unsuccessfully sought re-election in 2008 and 2012. He was elected to the state’s utilities regulation board in 2014 and has served as its chairman since 2015.
Other Republicans in the running include state Supreme Court Clerk Bowen Greenwood, former state Senate President Scott Sales, Deputy Secretary of State Christi Jacobsen, state Rep. Forrest Mandeville, and Kurt Johnson.
The June 2 Republican primary is open to all registered voters. The winner will face state Sen. Bryce Bennett (D), the only Democrat to file for the office. Incumbent Corey Stapleton (R) is running for U.S. House rather than seeking re-election.
Longtime Republican lawmaker to face former Democratic gubernatorial candidate in Oregon Secretary of State primary
The Republican primary for Oregon Secretary of State will pit a 15-year veteran of the state legislature against a former Democratic candidate for governor. State Sen. Kim Thatcher (R) and attorney Dave Stauffer (R) were the only two candidates who filed ahead of the March 10 deadline.
Thatcher was first elected to the state Senate in 2014 after serving ten years in the state House. She has served as vice chairwoman of the Senate Judiciary Committee since the 2017 legislative session.
Stauffer is an attorney and environmental engineer who has run for governor twice in recent years. In the 2016 special election, Stauffer challenged incumbent Kate Brown for the Democratic nomination, receiving 2.8% of the vote. Stauffer ran as a Republican in the 2018 primary, where he received 0.7% of the vote.
Unlike in most states, Oregon’s secretary of state is first in line to the governorship. There is no lieutenant governor of Oregon. Four governors, including incumbent Kate Brown (D), were originally secretaries of state who succeeded to the office after a governor left office early.
The current secretary of state is Republican Bev Clarno, meaning that if Brown were to leave office, Republicans would gain Oregon’s governorship and break the state’s Democratic trifecta. Clarno, who was appointed to the office following the death of Dennis Richardson (R) in February 2019, will not seek a full term in 2020.
The May 19 primary is open to registered Republicans only.
Legislatures
Four candidates vying for the Republican nomination in Portland-area house district
Following last week’s filing deadline, four candidates, including one former state representative, are on the ballot seeking the Republican nomination in Oregon’s 26th House District. The Portland-area district’s current representative is Rep. Courtney Neron (D) who narrowly defeated incumbent Richard Vial (R) 51-47 in 2018.
The candidates are Derrick Kitts, Dan Laschober, Larry McDonald, and Peggy Stevens. Laschober previously ran in the Republican primary against then-incumbent Vial in 2018. He lost 70-30. Kitts is a former Oregon state legislator. He represented Oregon’s 30th House District for two terms from 2002-2006 before leaving office to challenge U.S. Representative David Wu (D) of Oregon’s 1st Congressional District in 2006. Kitts lost 63-34.
Alaska representative charged with 2018 voter misconduct following loss of local party support
Last Friday, Alaska state prosecutors charged state Rep. Gabrielle LeDoux (R-15) with voter misconduct and unlawful interference with voting over actions that took place during the previous Republican primaries in House District 15.
LeDoux was one of three Republicans who formed a majority coalition with 17 Democrats and two independents following the 2016 elections (where Republicans won 21 of 40 seats). In 2018, LeDoux faced a primary challenge from Aaron Weaver. She won the primary by a margin of 117 votes.
Last February, before the charges, the District 15 Republican Convention formally withdrew support from LeDoux. Since then, David Nelson (R) has filed to run. District 15’s Republican chairwoman, Madeleine Gaiser, said: “We…plan to throw our full support behind him and his campaign.”
Following the filing deadline, Huseman retirement sets up three-way primary for Iowa House seat
Earlier this year, Iowa Rep. Dan Huseman (R-03) announced he would not seek re-election in 2020 for his northwestern Iowa seat. First elected in 1994, Huseman is the longest serving Republican member of the Iowa House of Representatives.
Following the passage of the final filing deadline for state legislative candidates last Friday, three Republicans are running in the June 2 primary: Cherokee County supervisor Dennis Bush, former Alta-Aurelia superintendent Lynn Evans, and Mark McHugh.
Since no Democratic candidates filed before the deadline, the winner of the Republican primary will likely be the district’s next representative.
Power players
“The National Rifle Association is America’s longest-standing civil rights organization. Together with our more than five million members, we’re proud defenders of history’s patriots and diligent protectors of the Second Amendment.” – National Rifle Association website
Founded in 1871, the National Rifle Association (NRA) is a 501(c)(4) nonprofit organization that says of itself, “While widely recognized today as a major political force and as America’s foremost defender of Second Amendment rights, the NRA has, since its inception, been the premier firearms education organization in the world.”
The lobbying arm of the NRA is called the Institute for Legislative Action (NRA-ILA). The NRA-ILA was founded in 1975 and says it is “responsible for preserving the right of all law-abiding individuals in the legislative, political, and legal arenas, to purchase, possess and use firearms for legitimate purposes as guaranteed by the Second Amendment to the U.S. Constitution.”
The NRA’s political action committee, the NRA Political Victory Fund (NRA-PVF), grades and endorses political candidates. The group’s endorsement policy says, “NRA has a pro-gun incumbent-friendly policy that dictates our support for pro-gun incumbents seeking reelection. It is important that we stand with our friends who stand with us in Congress or the state legislature through their actions.” To search candidates endorsed by the NRA-PVF, click here.
This week: Ohio, Kentucky, and Maryland postpone primaries, Newman defeats incumbent Lipinski in IL-03, and Tzintzún Ramirez endorses West in Texas Senate runoff
Election update
Ohio among three states to postpone primaries—decision made less than 24 hours before polls open
Ohio Gov. Mike DeWine (R) announced Monday night that polls would be closed on Tuesday by the order of the state health director. Secretary of State Frank LaRose (R) postponed in-person voting to June 2.
Ohio was scheduled to hold primaries for president, the state’s 16 U.S. House seats, both chambers of the state legislature, the Ohio Supreme Court, and local elections Tuesday.
During this time when we face an unprecedented public health crisis, to conduct an election tomorrow would force poll workers and voters to place themselves at an unacceptable health risk of contracting coronavirus.
Later Monday, Kentucky Secretary of State Michael Adams (R) announced that he and Gov. Andy Beshear (D) had agreed to postpone the state’s primary from May 19 to June 23.
On Tuesday, Gov. Larry Hogan (R) postponed Maryland’s primary from April 28 to June 2. The special election for Elijah Cummings’ U.S. House seat will still take place April 28 but will be conducted via mail-in ballot only.
For an account of events related to the postponements, and for details on changes to the election calendar in other states, click here.
Lipinski, who was first elected in 2004, said he was “the common-sense Democrat” and criticized what he called Newman’s socialist ideology and leftist fantasies. Newman said Lipinski was not a real Democrat. She said, “Since 2004, my opponent has ignored the concerns of wide swaths of his constituency. He voted against the Affordable Care Act, against the Dream Act, and has repeatedly stood with the Republican party to attack workers, women and the LGBTQ community.” Lipinski and Newman faced off in the district’s 2018 Democratic primary. Lipinski won that contest, 51.1% to 48.9%.
A Democrat has represented the district since 1975, and major race rating outlets view the general election as Solid Democratic or Safe Democratic.
Illinois’ 7th Congressional District: Incumbent Danny Davis won Illinois’ 7th Congressional District Democratic primary. With 95% of precincts reporting, Davis had 61% of the vote. Davis was first elected in 1996. The Chicago Tribune, U.S. Sen. Tammy Duckworth (D-Ill.), U.S. Sen. Dick Durbin (D-Ill.), and Lt. Gov. Juliana Stratton (D) endorsed Davis.
Cook County state’s attorney: Incumbent Kim Foxx won the Cook County state’s attorney Democratic primary. With 97% of precincts reporting, Foxx received 50% of the vote. Bill Conway followed with 31%. Four candidates ran.
The election occurred against the backdrop of the case of former Empire actor Jussie Smollett, who filed a police report January 2019 alleging he was attacked. Smollett was later charged with multiple counts related to filing a false police report. Foxx dropped the charges against Smollett in March 2019 in favor of an alternative prosecution program. Foxx’s 2020 Democratic primary challengers criticized her handling of the case, while she defended it.
Conway raised $11.4 million to Foxx’s $3.6 million as of March 7.
On the news
Where do Democratic and progressive pundits and commentators disagree? Each week, we bring you excerpts that highlight differing views.
“America’s catastrophically inadequate response to the coronavirus can be attributed largely to bad short-term decisions by one man. And I do mean short-term: At every stage, Donald Trump minimized the threat and blocked helpful action because he wanted to look good for the next news cycle or two, ignoring and intimidating anyone who tried to give him good advice. …
[T]here are only two potential loci of intelligent economic policymaking left in Washington. One is the Federal Reserve; the other is the congressional Democratic leadership. At this point, in other words, it’s pretty much up to Jay Powell, the Fed chairman, and Nancy Pelosi, speaker of the House; the question is whether Trump and Senate Republicans will let them save the economy. …
It’s now up to Powell and Pelosi to rescue the economy, and Trump and company need to get out of their way.”
“There’s an easy way to tell that House Speaker Nancy Pelosi negotiated a bad deal on the bipartisan coronavirus response bill that Congress is expected to pass this week. It’s not the liberal complaints that she let the White House limit paid sick leave to about one-fifth of U.S. workers. It’s not the Republican complaints that the bill doesn’t provide tax relief and cash for businesses and individuals hurt by the pandemic. It’s not even the general consensus that this initial legislation will need to be followed up by a much more aggressive economic stimulus bill.
No, the easy way to tell Pelosi negotiated a bad deal for Democrats is that she negotiated a deal at all—rather than dictating the terms and telling President Donald Trump to take them or leave them. The lesson of the last congressional response to an economic emergency, President Barack Obama’s 2009 stimulus bill, is that when a president desperately needs legislation to address a crisis, anyone with the power to stop him can decide what’s in it.”
Tzintzún Ramirez endorses West in Senate primary runoff in Texas
Cristina Tzintzún Ramirez, the third-place finisher in the March 3 primary for Senate in Texas, endorsed Royce West in the May 26 primary runoff. West faces M.J. Hegar in that contest.
Hegar received 22.3% of the primary vote, and West received 14.5%. Tzintzún Ramirez got 13.2%.
Michael Cooper, who received 5% of the vote, also endorsed West.
National groups including the Democratic Senatorial Campaign Committee, End Citizens United, and Giffords PAC endorsed Hegar ahead of the primary. West’s endorsers include four of his state Senate colleagues and 16 members of the state House.
Tzintzún Ramirez’s backers included Reps. Joaquin Castro (D) and Alexandria Ocasio-Cortez (D) and the Working Families Party.
The runoff winner faces incumbent John Cornyn (R) in the November general election.
Joseph Kennedy’s campaign said the Democratic Senatorial Campaign Committee has blocked his effort to form a joint fundraising committee with other Democratic candidates for U.S. Senate. Kennedy, who represents the state’s 4th congressional district, is challenging Sen. Ed Markey in Massachusetts’ Sept. 1 primary.
Kennedy’s campaign said he tried to enter a joint fundraising agreement with four Democratic Senate candidates running for seats currently held by Republicans: Barbara Bollier in Kansas, Cal Cunningham in North Carolina, Sara Gideon in Maine, and Jamie Harrison in South Carolina.
Victoria McGrane of The Boston Globereported of Kennedy’s offer,
The candidates were receptive, and everything appeared to be moving forward smoothly until the Kennedy team got a call from one of the other campaigns saying the Democratic Senatorial Campaign Committee had told them they could not enter into an agreement with the Newton Democrat, according to a Kennedy campaign aide.
McGrane wrote,
Joint fund-raising arrangements, which are federally regulated, allow participants to share the overhead costs of raising cash. They also mean wealthy donors can write one big check to the fund, which then splits the money among participants.
McGrane reported the DSCC and the Bollier, Cunningham, Gideon, and Harrison campaigns did not respond to requests for comment.
The DSCC supports Markey in the primary. The group has a policy of supporting incumbent Democratic senators.
Kennedy reported raising $4 million by the end of 2019 to Markey’s $4.6 million.
State executives
Rebecca Holcombe leads Vermont gubernatorial candidates in fundraising, wins endorsement from former Gov. Kunin
According to financial reports filed Sunday, former Vermont education secretary Rebecca Holcombe leads the field of Democratic gubernatorial candidates in fundraising.
Since launching her campaign, Holcombe has raised $380,000 to Lt. Gov. David Zuckerman’s $160,000 and attorney Patrick Winburn’s $110,000. Holcombe has reported contributions from 1,210 individual donors to Zuckerman’s 1,126 and Winburn’s nine.
Former Gov. Madeleine Kunin (D), who was elected in 1984 and served through 1991, endorsed Holcombe March 11.
The candidate filing deadline is May 28. The August 11 primary is open to all registered voters.
Joe Manchin, AFL-CIO endorse Ben Salango for West Virginia Democratic gubernatorial nomination
Kanawha County Commissioner Ben Salango (D) won the endorsements of Sen. Joe Manchin (D) and the state branch of the AFL-CIO in his bid for West Virginia’s Democratic gubernatorial nomination.
The AFL-CIO endorsed Salango Monday, saying he was committed to the state’s working people. In the 2016 election, the group declined to endorse in the Democratic primary and backed Democratic nominee Jim Justice in the general election. Justice, who is running for re-election this year, joined the Republican Party in August 2017.
Manchin, who was elected governor in 2004 and re-elected in 2008, is one of two Democrats to hold a statewide elected partisan office in West Virginia.
Five candidates, including Salango, activist Stephen Smith, and state Sen. Ron Stollings, are running in the May 12 Democratic primary. The winner will face the Republican nominee in the November general election. Democrats have won each of the past six West Virginia gubernatorial elections.
Terry Van Duyn declines to seek runoff in North Carolina lieutenant gubernatorial race
Second-place finisher Terry Van Duyn announced March 10 that she would not pursue a runoff in the Democratic primary for lieutenant governor of North Carolina. Van Duyn’s decision means that Yvonne Lewis Holley wins the Democratic nomination outright. North Carolina law allows the second-place candidate to request a runoff if no candidate receives more than 30% of the vote. Lewis Holley will face Mark Robinson (R) in the general election.
Legislatures
Oregon state Rep. Mitchell does not file for re-election following a recall effort
The filing deadline for state legislative candidates in Oregon passed last week and incumbent state Rep. Tiffiny Mitchell (D-32) decided not to seek re-election. Mitchell was first elected to Oregon’s 32nd House District in 2018, defeating Vineeta Lower (R) 49-32. In September 2019, an effort to recall Mitchell from her position was launched. Supporters of the recall effort failed to gather the required 4,883 signatures within 90 days.
Two candidates are currently filed to run for the Democratic nomination: Debbie Booth-Schmidt and George Kiepke. A Democrat has represented the district, which covers much of Clatsop County in northwestern Oregon, for nearly two decades.
Candidate drops out of Kentucky House race over concerns about age requirements
The Democratic primary for Kentucky’s open 56th House District narrowed to two candidates last week after Ben Nolan (D) withdrew his candidacy. Nolan cited ambiguities surrounding his age as a major reason for the withdrawal.
In Kentucky, a state representative must be at least 24 years old. Nolan, 23, will not turn 24 until fifteen days after the general election.
In a statement regarding his withdrawal, Nolan said, “I cannot spend contributors’ money or ask for contributions when the favorable result could very well lead us into an unknown territory of complications.”
Lamar Allen and Bob Gibson remain in the primary for the Democratic nomination to represent House District 56. The current incumbent, Rep. Joe Graviss (D-56), is not seeking re-election.
New Mexico state senator faces primary in first election after being appointed to seat formerly held by her grandfather
Incumbent State Sen. Shannon Pinto (D-3) could face a three-way primary to be the Democratic nominee for Senate District 3 in New Mexico. Dineh Benally and Shawn Nelson have both filed to run in the Democratic primary.
This will be Pinto’s first election. In 2018, her grandfather, John Pinto (D), ran unopposed in the district. He passed away in May 2019 after serving in the New Mexico State Senate since 1977. Governor Michelle Lujan Grisham (D) appointed Shannon Pinto to the seat in July 2019.
Power players
“We influence policy, hold politicians accountable, and win elections. This is how we fight to build a world with clean air, clean water, public lands, and a safe climate that are protected by a just and equitable democracy.” – League of Conservation Voters website
The League of Conservation Voters (LCV) is a 501(c)(4) nonprofit organization that describes itself as a “potent political force for protecting our planet and everyone who inhabits it.” LCV says it has “built a powerful national movement with more than 2 million members, 30 state affiliates, and grassroots and community organizing programs across the country.”
LCV released its 2019 National Environmental Scorecard on March 12. According to The Hill, “Republicans and Democrats both saw improvements on a conservation group’s annual assessment of environmental voting records last year, though the new report largely praised Democrats while criticizing Republicans. … Republicans in both chambers had an average score of less than 13 percent, according to an LCV spokesperson, compared to an 8-percent average in 2018.”
The LCV Action Fund endorses candidates it deems “environmental champions who will address the climate crisis and advance a more equitable clean energy future.” To view candidates endorsed by the LCV Action Fund, click here.
In addition to the LCV Action Fund, other groups affiliated with LCV are the LCV Education Fund, the LCV Victory Fund, and the LCV Political Engagement Fund.
March 18, 2020: Joe Biden wins primaries in Arizona, Florida, and Illinois. Donald Trump crosses the delegate threshold to secure the Republican nomination. Maryland moves its primary from April 28 to June 2.
“The perspective here should be: How do we hold the election in November? Not whether. We had elections during World War II. We held elections during the Civil War. We’re going to hold an election this year. We’ve got to figure out how to do it and to do it in a way that gives us a result that conforms to the idea that it’s the ‘will of the people.’”
– Edward Foley, Ohio State University election law professor
March 17 primary results
Three states—Arizona, Florida, and Illinois—held primaries on Tuesday. Joe Biden won all three Democratic primaries and ended the night with at least 249 of the 441 pledged delegates available. Bernie Sanders is projected to receive at least 116 pledged delegates.
In the Republican primary, Donald Trump crossed the delegate threshold necessary to clinch the Republican nomination—1,276 delegates—with his primary win in Florida.
Democratic National Committee Chairman Tom Perez called on state election officials to implement no-excuse absentee voting and mail out ballots to all registered voters rather than postpone primaries. “The right to vote is the foundation of our democracy, and we must do everything we can to protect and expand that right instead of bringing our democratic process to a halt,” he said.
The Secret Service began providing protection to Joe Biden on Tuesday. His code name is Celtic, the same name used during his vice presidency.
Biden discussed the coronavirus pandemic and appealed to Bernie Sanders supporters during an online address Tuesday night.
Tulsi Gabbardtweeted that primaries should not be held at this time because of the coronavirus pandemic. She said it would lead to senior voter suppression.
During a livestream on Tuesday night, Sandersproposed providing every household with a $2,000 cash payment each month during the coronavirus pandemic.
Michael Bloomberg is donating $2 million to Swing Left to help organize grassroots campaigns in presidential battlegrounds and competitive congressional races.
Republicans
Donald Trump discussed economic stimulus initiatives during a briefing on Tuesday, including deferring IRS payments and possibly sending checks to every American.
Multiple organizations challenged the law in court, including the American Civil Liberties Union (ACLU), Americans for Prosperity, and the Illinois Opportunity Project challenged the legislation in court. President Barack Obama (D) appointed Martinotti to the court in 2016.
What is at issue? Under the law enacted 2019, 501(c)(4) and 527 entities that spent $3,000 or more annually to influence or provide political information about the outcome of any election or policy proposal were required to disclose the identities of their donors who contributed $10,000 or more.
What are the reactions?
Jeanne LoCicero, legal director for the New Jersey chapter of the ACLU, said, “This court order halts the enforcement of a law that hindered the freedom of assembly, hampered the right to petition government, and compromised privacy rights. All nonprofits should be able to communicate about issues of public concern without fear of being subject to invasive disclosure rules.”
Patrick Hughes, president of the Liberty Justice Center, which represented the Illinois Opportunity Project, said, “Adopted under the guise of transparency, these laws are designed to allow opponents of advocacy groups to intimidate and harass the organizations’ supporters. All Americans should be free to support causes they believe in without an invasion into their privacy through excessive government reporting requirements or retribution from their opponents.”
In a statement issued March 4, in anticipation of Martinotti’s order, Senator Troy Singleton (D) and Assemblyman Andrew Zwicker (D) said, “We have already begun working with the legislative leadership on the next steps and we believe there is a clear path forward. With the presidential and congressional elections later this year, we expect tens of millions of ‘dark money’ dollars to be spent in an attempt to influence the outcomes. We will continue to fight to ensure that those organizations that accept anonymous large donations are forced to disclose their sources. We must shine a light on who is working secretly to change the course of our elections. The people of New Jersey deserve nothing less than the fairness and transparency our legislation will provide.”
What comes next? It is unclear whether an appeal will be filed. At the time of Martinotti’s order, both the governor’s office and the office of the attorney general declined to comment.
Number of relevant bills by state: We’re currently tracking 45 pieces of legislation dealing with donor disclosure. 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 legislative actions taken on relevant bills since our last issue. Bills are listed in alphabetical order, first by state then by bill number.
New Hampshire HB1525: This bill would alter the definition of a political advocacy organization for the purposes of campaign finance reporting.
House Election Law Committee approved March 12.
Democratic sponsorship.
Tennessee HB2665: This bill would prohibit public agencies from requiring 501(c) entities to furnish them with personal information about donors.
House Constitutional Protections and Sentencing Subcommittee scheduled March 17.
Republican sponsorship.
Virginia SB979: This bill extends the applicability of the state’s campaign finance disclosure act to candidates for directors or soil and water conservation districts.
Delivered to governor March 12. Governor’s action deadline April 11.
The Checks and Balances Letter delivers news and information from Ballotpedia’s Administrative State Project, including pivotal actions at the federal and state levels related to the separation of powers, due process and the rule of law.
This edition:
In this month’s edition of Checks and Balances, we review an upcoming U.S. Supreme Court case that could allow for more religious challenges to federal regulations; the nationwide enforceability of the Trump administration’s public charge rule; and Justice Clarence Thomas’ willingness to reconsider Brand X deference. Our feature this month highlights a study by the Mackinac Center for Public Policy that examines overcriminalization in agency rules.
At the state level, we review a trio of state responses to judicial deference in Mississippi, Indiana, and Georgia; the denial of Arkansas’ Medicaid work requirements by an appellate court; and an update on the state of New York’s plastic bag ban. As always, we wrap up with our Regulatory Tally, which features information about the 203 proposed rules and 265 final rules added to the Federal Register in February and OIRA’s regulatory review activity.
The Checks and Balances Letter
In Washington
SCOTUS case could allow more opportunities to challenge federal regulations
What’s the story? A U.S. Supreme Court case scheduled for oral argument on April 29 could clarify when notice-and-comment procedures satisfy the requirements of the Administrative Procedure Act (APA), allowing individuals to challenge more federal laws and regulations.
The case, Little Sisters of the Poor Saints Peter and Paul Home v. Pennsylvania, concerns the Trump administration’s legal authority to issue rules providing a religious or moral exemption to the contraception mandate created under the Affordable Care Act, commonly known as Obamacare.
The U.S. Court of Appeals for the Third Circuit in July 2019 upheld a nationwide injunction that blocked the new exemption rules from going into effect. The court held that the U.S. Department of the Treasury, the U.S. Department of Labor, the Internal Revenue Service, and the U.S. Department of Health and Human Services did not have legal permission to modify Obamacare’s contraceptive requirements.
Congress retained the authority to exempt employers from providing contraceptive coverage under Obamacare and did not delegate exemption authority to agencies, according to the Third Circuit.
The court also held that the agencies violated the APA’s notice-and-comment requirements by failing to issue a notice of proposed rulemaking or solicit public comments.
SCOTUS allows nationwide enforcement of rule restricting admissibility of immigrants needing public assistance
What’s the story? The U.S. Department of Homeland Security’s (DHS) public charge rule is now enforceable nationwide after the U.S. Supreme Court on February 21 voted 5-4 to stay an Illinois injunction blocking statewide enforcement of the rule. The court stayed a separate nationwide injunction on January 27 and appellate courts lifted three additional injunctions in December 2019.
The public charge rule, issued by DHS in August 2019, authorizes the federal government to deny immigrants a visa or a green card if they rely on government assistance.
Judge Gary Feinerman of the U.S. District Court for the Northern District of Illinois issued the statewide injunction blocking the rule in October 2019. Feinerman held that the rule would impose financial consequences on Cook County and that DHS acted arbitrarily and capriciously beyond the scope of its authority when it made the public charge rule.
DHS requested that the U.S. Supreme Court lift the statewide injunction. The U.S. Supreme Court granted the request for a stay. Justices John Roberts, Clarence Thomas, Samuel Alito, Neil Gorsuch, and Brett Kavanaugh ruled in favor of the stay while Justices Ruth Bader Ginsburg, Stephen Breyer, Elena Kagan, and Sonia Sotomayor dissented.
Sotomayor filed a dissenting opinion with the order, arguing, “It is hard to say what is more troubling: that the Government would seek this extraordinary relief seemingly as a matter of course, or that the Court would grant it.”
The decision allows the rule to take effect nationwide pending a final decision in Wolf v. Cook County, Ill. The U.S. Court of Appeals for the Seventh Circuit heard oral argument in the case on February 26.
Justice Thomas labels deference doctrine inconsistent with the Constitution
What’s the story? U.S. Supreme Court Justice Clarence Thomas on February 24 stated that he would reconsider his 2005 opinion in National Cable & Telecommunications Association v. Brand X Internet Services that gave rise to the Brand X deference doctrine.
Thomas dissented from the majority’s decision not to hear Baldwin v. United States, a case challenging Brand X deference. He argued that Brand X deference appears to be “inconsistent with the Constitution, the Administrative Procedure Act (APA), and traditional tools of statutory interpretation.”
The Brand X case concerned an application of the Chevron deference doctrine. Under Chevron deference, federal courts must defer to a federal agency’s interpretation of an ambiguous or unclear statute. Brand X built on Chevron’s foundation by requiring courts to defer to agency interpretations of statutes even when courts previously held contrary views.
Justice Thomas argued that both deference precedents undermined the requirements of the United States Constitution. He wrote, “Regrettably, Brand X has taken this Court to the precipice of administrative absolutism. Under its rule of deference, agencies are free to invent new (purported) interpretations of statutes and then require courts to reject their own prior interpretations. Brand X may well follow from Chevron, but in so doing, it poignantly lays bare the flaws of our entire executive-deference jurisprudence. Even if the Court is not willing to question Chevron itself, at the very least, we should consider taking a step away from the abyss by revisiting Brand X.”
Mississippi Supreme Court justices call for end to state deference doctrine
What’s the story? Mississippi Supreme Court Justice Josiah Coleman on February 13 wrote a dissenting opinion in Central Mississippi Medical Center v. Mississippi Division of Medicaid calling for an end to the state’s judicial practice of deferring to agency interpretations of regulations. The opinion was joined by Justice T. Kenneth Griffis and joined in part by Justices Leslie King and Jim Kitchens.
Court precedent from a 2006 case established the state’s deference standard that “an agency’s interpretation of a rule governing the agency’s operation is a matter of law that is reviewed de novo, but with great deference to the agency’s interpretation.”
Coleman argued in part that the deference practice violates the Mississippi Constitution’s separation of powers provision. “In ceding the rule-interpreting power of the courts to the executive branch by giving deference to agency interpretation of regulations,” wrote Coleman, “the Court in the past has put all or part of all three functions of government—rule making, rule enforcement, and rule interpretation—in the hands of one branch.”
The practice of deferring to agency interpretations of regulations is known as Auer deference at the federal level. The U.S. Supreme Court limited the types of agency interpretations that qualify for Auer deference in the 2019 case Kisor v. Wilkie.
The Mississippi Supreme Court issued a 2008 opinion that ended the state’s judicial practice of deferring to agency interpretations of ambiguous statutes—known as Chevron deference at the federal level—in a 2008 opinion.
Georgia lawmakers vote to limit judicial deference
What’s the story? The Georgia House of Representatives voted 158-8 on February 18 to approve legislation that would end the practice of judicial deference to tax regulations in the state. House Bill 538—sponsored by state Representatives Todd Jones (R), Mitchell Scoggins (R), and Brett Harrell (R)—would require the Georgia Tax Tribunal to decide all questions of law without deference to the regulations or policy interpretations of the state’s Department of Revenue.
If the legislation becomes law, Georgia would join a group of other states that have addressed judicial deference practices in recent years. Since 2008, Wisconsin, Florida, Mississippi, Arizona, and Michigan have taken executive, judicial, or legislative action to prohibit some form of judicial deference to state agencies.
What’s the story? Justice Geoffrey Slaughter of the Indiana Supreme Court wrote a separate note from the court’s February 24 order denying the transfer of Indiana Department of Natural Resources v. Possner that questioned the state’s judicial deference requirements.
The Indiana Administrative Orders and Procedures Act requires a reviewing court to defer to an agency’s factfinding if the agency provides sufficient evidence on the record.
Slaughter wrote, “Under the current system, a government agency both finds the facts and interprets the statutes that supply the rules of decision, and the courts’ only role (as we have interpreted AOPA) is to defer to all aspects of the agency’s decision-making.”
Slaughter stated that he was open to hearing legal challenges to the deference requirements. “In a future case, where the issues are raised and the arguments developed, I am open to entertaining legal challenges to this system for adjudicating the legal disputes that our legislature assigns agencies to resolve in the first instance, subject only to a highly circumscribed right of judicial review as set forth in AOPA.”
State-level Medicaid work requirements dealt blow by federal court panel
What’s the story? A three-judge panel of the United States Court of Appeals for the District of Columbia Circuit on February 14 blocked a waiver from the Trump administration that would have allowed the state of Arkansas to institute work requirements for Medicaid recipients.
Judges Cornelia Pillard, Harry Edwards, and David Sentelle (appointed by Presidents Barack Obama (D), Jimmy Carter (D), and Ronald Reagan (R), respectively) ruled in Gresham v. Azar that U.S. Department of Health and Human Services (HHS) Secretary Alex Azar failed the arbitrary-or-capricious test when he approved a waiver request from Arkansas requiring its Medicaid beneficiaries to work at least 80 hours per month.
The judges held that Azar was wrong not to consider whether the Arkansas work requirements would prevent some people from receiving health care coverage. Congress intended Medicaid to provide health care coverage, according to the panel, and that HHS must uphold that purpose when approving state coverage plans.
The Trump administration announced in January 2018 that it would allow states to implement work requirements for Medicaid recipients by obtaining waivers from HHS. Judge James Boasberg of the United States District Court for the District of Columbia in 2019 blocked waivers for Arkansas, Kentucky, and New Hampshire from going into effect. He later blocked Michigan’s work requirements from taking effect on March 4.
New Hampshire’s appeal is pending before the D.C. Circuit and Michigan could follow suit. Newly elected Kentucky Governor Andy Beshear (D) issued an executive order rescinding the state’s work requirements in December 2019.
Arkansas Governor Asa Hutchinson (R) told the Associated Press that he hopes the case reaches the U.S. Supreme Court. “It is difficult to understand how this purpose is inconsistent with federal law,” he said. “The court’s ruling undermines broad public support for expanded health care coverage for those struggling financially.”
New York agency plastic bag ban leaves New Yorkers holding the bag
What’s the story? New York’s ban on single-use plastic bags took effect March 1, and for state residents, that means they must switch to reusable bags, or pay a five-cent per bag fee for paper bags.
Governor Andrew Cuomo (D) signed the ban into law in August 2019. Similar prohibitions are currently in effect in California, Hawaii, and Oregon. Additional bans in Maine and Vermont take effect in April and July, respectively.
The New York State Department of Environmental Conservation (NYSDEC) released final regulations to administer the measure in late February. The rules prohibit the use of single-use plastic bags by any retailer that collects sales tax, with certain exceptions, and gives counties and cities the option to charge shoppers a five-cent fee on paper bags. Retailers in violation of the rules face a $250 fine for the first offense and a $500 fine for each subsequent violation.
Report examines overcriminalization in agency rules
The Mackinac Center for Public Policy issued a recent report highlighting the overcriminalization that results from allowing administrative agencies to issue regulations that define criminal behavior. The report argues that lawmakers’ delegations of authority to administrative agencies to promulgate binding rules result in innumerable, overly precise regulations that overcriminalize society and reduce respect for the law:
“One of the largest problems with creating crimes through administrative agencies is that it leads to an increase in criminally liable behavior — in other words, the overcriminalization of society. Overcriminalization is the idea that there are so many laws carrying criminal sanctions that a reasonably well-informed, well-intentioned person could not presume to know whether their actions were legal or not. …
Having so many administrative rules also makes it impossible for law enforcement and administrative agencies to enforce all of them. The state has limited resources and limited knowledge and must ultimately choose which rules it will devote resources to enforcing and which ones it will not. From the viewpoint of the average citizen, then, enforcement appears arbitrary.
This lowers citizens’ respect for the law and weakens the rule of law. One consequence is that the Legislature’s ability to guide citizens’ behavior through the use of the law diminishes. Moreover, arbitrarily enforced rules may lead citizens to believe that those charged with crimes are targeted by the government for some reason unrelated to its duty to uphold the law and protect public safety. This contributes to distrust in government, in particular to its ability to impartially enforce the law.”
The Federal Register in February reached 12,206 pages. The number of pages at the end of each February during the Obama administration (2009-2016) averaged 11,074 pages.
The February Federal Register included 203 proposed rules and 265 final rules. These included a rule approving a landfill emission plan in Delaware, a rule adjusting Copyright Office fees for inflation, and a rule imposing restrictions on archaeological imports from Jordan, among others.
Review of 44 significant regulatory actions. Between 2009-2016, the Obama administration reviewed an average of 40 significant regulatory actions each February.
One rule approved without change; recommended changes to 36 proposed rules; seven rules withdrawn.
OIRA reviewed 23 significant rules in February 2019, 20 significant rules in February 2018, and three significant rules in February 2017.
As of March 2, 2020, OIRA’s website listed 114 regulatory actions under review.
