Nine states begin general election early voting in September
Forty-five states and Washington, D.C., will conduct no-excuse, in-person early voting for the November elections. Nine states begin early voting in September. Another 33 states and Washington, D.C., begin early voting in October. Three states begin early voting in November. The earliest start date for early voting is Sept. 19 in Pennsylvania.
Dan Cox wins Republican nomination for governor of Maryland, Democratic primary too close to call
Dan Cox won the Republican nomination for governor of Maryland in Tuesday’s primary. As of this writing, the Democratic primary remained too close to call, with Wes Moore and Tom Perez leading the 10-candidate field.
Voters also decided primaries for one U.S. Senate seat, all eight U.S. House districts, several state executive positions, and all state Senate and state House districts. Find full results at the link below.
Sixteen states will hold statewide primaries in August, second only to June when 17 states held primaries. August primaries will take place on six different dates, compared to four in June:
113 statewide ballot measures certified for the ballot, including new firearms measure in Oregon
As of July 20, 113 statewide measures have been certified for the ballot in 35 states, 27 less than the average number certified at this point in other even-numbered years from 2010 to 2020. One new measure was certified for the ballot last week: Oregon Changes to Firearm Ownership and Purchase Requirements Initiative. The initiative would enact a law outlining a procedure to apply for a permit to purchase a firearm. Signatures have been submitted and are pending verification for another 20 initiatives in 11 states.
156 state legislators have changed their party affiliations while in office since 1994
Ballotpedia has identified 156 state legislators who have changed their party affiliations while in office since 1994. The most common change has been Democrats switching to become Republicans. Of the 156 changes, 76, or 49%, fall into that category. This is followed by Democrats who switch to a third party or drop their affiliation to become an independent. There have been 27 such changes, representing 17% of the total.
Here is our weekly round-up on election-related legislation. In it, you’ll find the following information:
Noteworthy bills: Here, we identify and report on the contents and legislative status of noteworthy bills.
Recent activity: Here, we report on the number of bills acted on within the past week.
The big picture: Here, we look at the bills in the aggregate.
Legislative status: How many bills have been introduced, voted upon, or enacted into law?
Concentration of activity: What states have seen the highest concentration of legislative activity?
Partisan affiliation of sponsorship: How many bills have been sponsored by Democrats vs. Republicans?
Subject: What subjects are most commonly addressed in the bills?
Noteworthy bills
This part of our report highlights recent activity on specific noteworthy bills. A bill is noteworthy if it meets one or more of the following criteria:
It has been enacted into law.
It is poised to be enacted into law.
It is the subject of significant debate in the legislature.
It is the subject of significant commentary by activists, journalists, etc.
Michigan HB5783: This bill requires the secretary of state to notify the speaker of the state House, the state Senate majority leader, and each county, city, and township clerk responsible for election administration before sending any election-related mailing to 20 percent or more of registered electors in a given precinct. This bill also requires the secretary of state to report annually to the general government appropriations subcommittee and the state budget office on the total number of electors who corrected their voter registration forms after being notified by the secretary of state and the total number of possible improper voters cast at the preceding primary and general elections that were referred to law enforcement.
Legislative history and status: The state House approved the final version of the bill on July 1 by a vote of 97-9. The state Senate unanimously approved the bill on the same day. The governor signed the bill into law on July 20.
Political context: Michigan has a divided government. Republicans control majorities in both chambers of the state legislature. The governor, Gretchen Whitmer, is a Democrat.
Recent activity
Since July 15, 11 bills have been acted on in some way (a 31.3 percent decrease as compared to last week’s total of 16 bills). These 11 bills represent 0.4 percent of the 2,524 bills we are tracking. Of these 11 bills, 10 (90.9 percent) are from states with Democratic trifectas and 1 (9.1 percent) was from a state with divided government.
The bar chart below compares recent activity on a week-to-week basis over the last eight weeks.
10 bills passed one chamber (or saw pre-adoption action in the second chamber).
Democratic trifectas: 10.
1 bill was enacted.
Divided governments: 1.
MI HB5783: Appropriations: general government; appropriations for fiscal year 2022-2023; provide for. Creates appropriation act.
The map below visualizes the concentration of this recent activity across the nation. A darker shade of yellow indicates a higher number of relevant bills that have been acted upon in the last week. A lighter shade of yellow indicates a lower number of bills that have been acted upon in the last week.
The big picture
To date, we have tracked 2,524 election-related bills. This represents a marginal decrease as compared to last week’s total. These bills were either introduced this year or crossed over from last year’s legislative sessions.
Legislative status
The pie charts below visualize the legislative status of the bills we are tracking. The following status indicators are used:
Introduced: The bill has been pre-filed, introduced, or referred to committee but has not otherwise been acted upon.
Advanced from committee: The bill has received a favorable vote in committee. It has either advanced to another committee or to the floor for a vote.
Passed one chamber: The bill has been approved by one legislative chamber.
Conference committee: Differing versions of the bill have been approved by their respective chambers and a conference committee has been appointed to reconcile the differences.
Passed both chambers: The bill has cleared both chambers of the legislature.
Enacted: The bill has been enacted into law, by gubernatorial action or inaction or veto override.
Vetoed: The bill has been vetoed.
Dead: The bill has been defeated in committee or by floor vote.
The pie charts below visualize the legislative status of bills in Democratic and Republican trifectas, respectively.
Concentration of activity
The map below visualizes the concentration of legislative activity across the nation. A darker shade of yellow indicates a higher number of relevant bills that have been introduced. A lighter shade of yellow indicates a lower number of relevant bills.
Partisan affiliation of sponsor(s)
The pie chart below visualizes the partisan affiliation of bill sponsors.
The bar chart below visualizes the correlation between the partisan affiliation of bill sponsors and trifecta status (e.g., how many Democratic-sponsored bills were introduced in Democratic trifectas vs. Republican trifectas).
Bills by topic
The chart below presents information on the total number of bills dealing with particular topics. The number listed on the blue portion of each bar indicates the number of Democratic-sponsored bills dealing with the subject in question. The number listed on the red portion of the bar indicates the number of Republican-sponsored bills. The purple and gray portions of the bar indicate the number of bipartisan-sponsored bills and bills with unspecified sponsorship, respectively. Note that the numbers listed here will not, when summed, equal the total number of bills because some bills deal with multiple topics.
Here’s what’s in store for you as you start your day:
156 state legislators have changed their party affiliations while in office since 1994
And that’s a wrap—final statewide filing deadline passes in Louisiana
#FridayTrivia: How many states begin early general election voting in September?
156 state legislators have changed their party affiliations while in office since 1994
When we talk about districts changing partisan control, we usually think of election results with one party defeating the other at the polls. But partisan control can change mid-cycle, too, when incumbent legislators choose to change or drop their affiliation.
Ballotpedia has identified 156 state legislators who have changed their party affiliations while in office since 1994.
The most common change has been Democrats switching to become Republicans. Of the 156 changes, 76, or 49%, fall into that category.
This is followed by Democrats who switch to a third party or drop their affiliation to become an independent. There have been 27 such changes, representing 17% of the total.
Overall, since 1994:
Democrats have lost 103 seats and gained 25, resulting in a net loss of 78.
Republicans have lost 42 seats and gained 82, a net 40 gain.
Minor party/independent members have lost 11 seats and gained 49, giving them a net gain of 38.
The largest number of changes came in 2010 when 27 legislators changed their party affiliations. During that year, 25 Democrats switched to become Republicans and one Democrat and one Republican switched to become independents. No incumbents switched to become Democrats.
The next-largest number came in 2021, with 19 changes: one Republican and three other legislators became Democrats, four Democrats and one other legislator became Republicans, and five Democrats and five Republicans switched to a third party or dropped their affiliations.
Democrats had their largest losses and, inversely, Republicans had their largest gains, during the period around the 2010 midterm elections, which was a Republican wave at the state legislative level.
The 2010 elections also switched which party controlled the majority of state legislative seats across the country from Democrats to Republicans, a majority that continues today with Republicans holding 54% of all seats to Democrats 44%.
More recently, a mixture of both Democrats and Republicans have switched their partisan affiliations to independent or a minor party. These changes have been most pronounced from 2017 to the present, with 39 major party incumbents making such a change. These recent years account for 80% of all changes tothird party or independents since 1994.
The charts below show the number of changes over time since 2005. The first has the number of legislators who changed to the party shown. The second has the number of legislators who changed from the party shown.
The most recent incumbent to change their party affiliation, and the only so far this year, was Mississippi State Rep. Shanda Yates, who left the Democratic Party in January to become an independent.
For context, these 156 changes represent a drop in the bucket in terms of the total number of state legislators. Today, there are 7,383 state legislative seats: 1,972 in Senates and 5,411 in Houses.
But when an incumbent legislator changes their party affiliation while in office, it can speak to larger political changes at a district or statewide level.
These changes can also shake up control of a chamber, like in the Washington Senate in 1981, when a Democratic incumbent became a Republican, breaking a tie and giving Republicans a majority.
To learn more about incumbent legislators who changed their party affiliations or to let us know of others we might have missed, use the link below.
And that’s a wrap—final statewide filing deadline passes in Louisiana
Today, July 22, is the filing deadline for statewide candidates in Louisiana and the final filing deadline for major-party candidates for statewide office in the 2022 election cycle.
The first statewide filing deadline was on Dec. 13, 2021, in Texas. The month with the single-most U.S. House filing deadlines was March (20) followed by June (9) and April (8). In addition to Louisiana, Delaware and Rhode Island also had filing deadlines in July.
How did we get here? While most filing deadlines are set before the election cycle begins, states might move or change their filing deadlines throughout the process. This year, redistricting affected congressional filing deadlines in seven states, as district lines must be in place so candidates know where they are running.
Additionally, in Louisiana, a federal court moved the deadline for candidates qualifying by petition from June 22 to July 8. The July 22 deadline for candidates qualifying by paying a filing fee remained unchanged.
In the 2020 election cycle, two states postponed filing deadlines for major party, statewide candidates in response to the coronavirus pandemic: Louisiana and Michigan. Several other states left deadlines in place but reduced or eliminated petition signature requirements.
After a filing deadline, voters learn who exactly qualified to appear on their ballots. But these candidate lists can still change as candidates might withdraw or drop out of races before the election.
We will stay on top of these changes so you can use our Sample Ballot Lookup tool to see the candidates in your upcoming elections here!
#FridayTrivia: How many states begin early general election voting in September?
The November general election is 109 days away, but in some states, voters can start casting ballots even sooner. In Pennsylvania, for example, voting will begin 59 days from now on Sept. 19, the day absentee/mail-in ballots become available there. In the Wednesday Brew, we brought you a nationwide look at when states’ early voting periods begin.
How many states begin early general election voting in September?
In this issue:Cox wins Maryland gubernatorial primary and Pence counters Trump in Arizona
Note: We’re taking a break from The Heart of the Primaries next week—we’ll see you again on Aug. 4 with takeaways from that week’s primaries and more!
Dan Cox wins Maryland gubernatorial primary
Dan Cox won the Republican primary for Maryland governor, defeating Robin Ficker, Kelly Schulz, and Joe Werner. With 80% of the expected vote in, Cox led Schulz 56% to 40%. (Mail ballot counting didn’t begin until Thursday morning, but outlets didn’t believe there were enough of those ballots to affect the outcome.)
Cox is an attorney who has served in the state House of Delegates since 2018. Schulz, who has worked in the defense and cybersecurity industries, served as Maryland’s secretary of commerce from 2019 through January of this year.
Former President Donald Trump (R) endorsed Cox, while outgoing Gov. Larry Hogan (R) endorsed Schulz. Media observersreferred to the primary as a proxy battle between Trump and Hogan. Hogan said in 2020 he wrote in Ronald Reagan for president rather than voting to re-elect Trump. Hogan said Wednesday he would not support Cox in the general election.
The Cook Political Report shifted its general election race rating from Lean Democratic to Solid Democratic on Wednesday.
Media analysis
Politico and The Wall Street Journal wrote about factional conflict in the gubernatorial primary and the Democratic Governors Association ads about Cox.
The win for Cox … who has full-throatedly embraced Trump’s repeated falsehoods about fraud in the 2020 election, scored the former president a victory in his fight with Hogan over the direction of the party both in the state and nationally.
Hogan had backed Kelly Schulz, a former state lawmaker who served in his Cabinet until earlier this year. The Hogan political machine mobilized for Schulz, with prominent advisers to the governor lending a hand to Schulz’ campaign.
“Get rid of Shutdown RINO Larry Hogan who is trying to get another RINO into office, Kelly Schulz,” Trump said in a statement on Monday.
The closing weeks of the race were dominated by the Democratic Governors Association, which dropped a multi-million ad campaign “attacking” Cox as too loyal to Trump. The DGA has insisted it was merely getting a head start on the general election, casting Cox as the frontrunner — despite public polling in the run-up to Tuesday showing Cox and Schulz deadlocked. But the campaign was widely seen as an attempt to boost the more extreme candidate in the Republican primary, in hopes that Cox would be easier to beat in the general election.
The primary election outcome sets up what political analysts predict will be an uphill battle for Mr. Cox in the November general election, given that registered Democrats outnumber Republicans 2 to 1 in Maryland and that President Biden defeated Mr. Trump 65% to 32% in 2020.
Maryland, whose incumbent is outgoing moderate Republican Gov. Larry Hogan, is one of the few largely Democratic states where the GOP currently holds the governor’s office.
…
Mr. Cox pledged to cut taxes, stop what he calls gender indoctrination of schoolchildren and “end the blood running in our streets with high crime and drug deaths.” He has said he thinks the 2020 presidential election was stolen and would order a “forensic audit” of that year’s election.
… Ms. Schulz had hoped to follow Mr. Hogan’s playbook by assembling a coalition of Republicans, independents and Democratic voters in the general election had she won the primary.
Political analysts say Mr. Cox likely benefited from the roughly $1.2 million in advertising that the Democratic Governors Association was projected to air in the primary. The DGA ran an ad highlighting Mr. Cox’s antiabortion and gun-rights stances, his false claim that the 2020 presidential election was fraudulent, and Mr. Trump’s endorsement. It also labeled him as too conservative for Maryland.
State legislative incumbents defeated
The figures below were current as of Wednesday morning. Click herefor more information on defeated incumbents.
No state legislative incumbents in Maryland have lost in primaries so far. But this will likely change. With vote totals remaining incomplete, 55 House and Senate primaries featuring incumbents—38 Democratic and 17 Republican—remain uncalled.
Across the 27 states that have held state legislative primaries so far this year, 135 incumbents, 4.8% of those running for re-election, have lost, continuing an elevated rate of incumbent primary defeats compared to recent election cycles.
Of the 27 states that have held primaries so far, eight have Democratic trifectas, 15 have Republican trifectas, and four have divided governments. Across these 27 states, there are 3,525 seats up for election, 57% of the nationwide total.
Pence, Ducey endorse for Arizona governor and secretary of state, countering Trump
In the last couple of weeks, former Vice President Mike Pence and Arizona Gov. Doug Ducey have added to their lists of endorsements countering those of former President Trump.
Pence endorsed Karrin Taylor Robson for Arizona governor. This is Pence’s fourth gubernatorial endorsement of 2022 and the second in which he has clashed with Trump. Trump backed Kari Lake for Arizona governor. Earlier this year, Pence endorsed Georgia Gov. Brian Kemp, who defeated Trump-endorsed David Perdue in the primary.
AZCentral reported that Pence is scheduled to attend events for Taylor Robson in Phoenix and elsewhere on Friday, while Trump is holding a rally for Lake that day in Prescott Valley.
As we wrote last week, Ducey also endorsed Taylor Robson. Ducey is term-limited.
Ducey recently endorsed Beau Lane for secretary of state. Lane faces Mark Finchem, whom Trump endorsed, and two others in the GOP primary.
Ducey said, “The 2022 elections haven’t even been held yet, and already we’re seeing speculation doubting the results — especially if certain candidates lose. … It’s one of the most irresponsible things I can imagine.”
Late last month, at a campaign stop in Chandler, Finchem said he would not concede his race if there was any suggestion of wrongdoing.
“There ain’t gonna be no concession speech coming from this guy,” Finchem said. “I’m going to demand 100% hand count (of ballots) if there’s the slightest hint of any impropriety. And I would urge the next governor to do the same thing.”
Arizona’s secretary of state, Katie Hobbs (D), is running for re-election.
President Joe Biden defeated Trump 49.4% to 49.1% in Arizona in 2020. Three forecasting outlets rate the gubernatorial general election a Toss-up.
The primaries are Aug. 2.
Chambers of Commerce endorse Rep. Peter Meijer in MI-03
The U.S., Michigan, and Grand Rapids Chambers of Commerce all recently endorsed U.S. Rep. Peter Meijer for re-election in Michigan’s 3rd Congressional District. In addition, Roll Callreported that “GOP super PAC Defending Main Street launched a six-figure mail blitz supporting Meijer.”
Meijer was one of 10 Republicans who voted to impeach Trump after Jan. 6. Trump endorsed his primary challenger, John Gibbs. Gibbs said Meijer “chose to be fawned over by the media & the DC establishment instead of doing what’s right & representing those who voted for him.”
Meijer said, “I take the oath I swore to the Constitution, an oath I took under God, seriously and voted accordingly.”
Meijer was elected in 2020 and served in the Army Reserve. Trump appointed Gibbs acting assistant secretary for community planning and development in 2020 after Gibbs served as a senior advisor at the U.S. Department of Housing and Urban Development.
The primary is Aug. 2. The winner will face Hillary Scholten (D) in the general election. Meijer defeated Scholten 53%-47% in 2020. Redistricting made the 3rd District more Democratic–leaning. Three forecasters rate the general election a Toss-up.
Cheney trails Hageman in first Wyoming U.S. House primary poll
A recent Mason-Dixon poll sponsored by the Casper Star-Tribune showed Harriet Hageman leading incumbent Rep. Liz Cheney 52% to 30% in Wyoming’s GOP House primary. Eleven percent were undecided. The poll’s margin of error is +/- 3 percentage points.
Cheney was first elected in 2016. She won the 2020 GOP primary with 74% of the vote.
Hageman founded the Wyoming Conservation Alliance and worked for Cheney’s unsuccessful 2014 U.S. Senate campaign. Hageman said she is challenging Cheney because “when she embraced Nancy Pelosi and voted for the partisan impeachment of President Donald Trump, she betrayed our nation, she betrayed Wyoming, and she betrayed me.” Earlier this month, we wrote about the candidates’ divergence on the 2020 presidential election results and the Jan. 6 investigative committee.
Cheney raised $13.1 million to Hageman’s $3.9 million through June 30.
Followup: Whatley withdraws in Alabama Senate District 27
On July 1, state Sen. Tom Whatley withdrew from the race for Alabama Senate District 27, leaving Auburn City Council member Jon Hovey as the Republican nominee in November.
As we wrote previously, Whatley, the 27th District’s incumbent, had challenged the May 24 primary results, which had him trailing Hovey by one vote. The Alabama Republican Party then declared the race a tie after deciding to count a provisional ballot it previously rejected for Whatley. The party announced the race would be decided by a coin toss.
Hovey requested a rehearing after the Alabama Law Enforcement Agency (ALEA) said the voter who cast the provisional ballot in question hadn’t completed the paperwork needed to get an Alabama driver’s license and complete her voter registration. The party agreed to Hovey’s request and scheduled a meeting for July 1. Whatley withdrew before the meeting took place.
Whatley said, “I am the Republican nominee who was voted by Republicans in my district. With that said, I now believe that it is in the best interest of my friends, colleagues, family, and the Republican Party, for me to step away from this tied race so that we can move forward and have success in November.”
Hovey said, “This has been a potentially divisive experience. But we have maintained that we would be successful by standing with integrity and running a clean campaign about me and my desire to serve.”
Hovey will face Democrat Sherri Reese in the November general election.
Competitiveness data: Michigan and Ohio
On Aug. 2, Michigan holds statewide primaries and Ohio holds state legislative primaries. We’ve crunched some numbers to see how competitive the primaries will be compared to recent election cycles.
Michigan
Ohio
Notes on how these figures were calculated:
Candidates per district: divides the total number of candidates by the number of districts holding elections.
Open districts: divides the number of districts without an incumbent running by the number of districts holding elections.
Contested primaries: divides the number of major party primaries by the number of possible primaries.
Incumbents in contested primaries: divides the number of incumbents in primaries by the number seeking re-election in the given election cycle.
In this issue: Maryland’s gubernatorial primary TBD and Sanders endorses Barnes for Senate in Wisconsin
Note: We’re taking a break from The Heart of the Primaries next week—we’ll see you again on Aug. 4 with takeaways from that week’s primaries and more!
Maryland gubernatorial primary too close to call
Wes Moore and Tom Perez led the 10-candidate Maryland gubernatorial primary as of Wednesday afternoon. Moore had 37% of the vote to Perez’s 27%, with 61% of the expected vote in.
According to The Washington Post, it could be several days until a winner can be declared. Voters requested a record number of mail ballots—around 500,000. According to state law, these ballots can’t be counted until July 21 at 10 a.m. The Post wrote, “Election officials estimate that some counties will finish counting their mail-in ballots by July 29, but others won’t until the first week of August.”
Moore, the former CEO of the Robin Hood Foundation, had endorsements from the Maryland Education Association and three members of Maryland’s congressional delegation. Perez, a former Democratic National Committee chairman, had endorsements from House Speaker Nancy Pelosi (D-Calif.) and The Washington Post and The Baltimore Sun editorial boards.
Dan Cox won the Republican primary. The Cook Political Report shifted its general election race rating from Lean Democratic to Solid Democratic on Wednesday.
State legislative incumbents defeated
The figures below were current as of Wednesday morning. Click herefor more information on defeated incumbents.
No state legislative incumbents in Maryland have lost in primaries so far. But this will likely change. With vote totals remaining incomplete, 55 House and Senate primaries featuring incumbents—38 Democratic and 17 Republican—remain uncalled.
Across the 27 states that have held state legislative primaries so far this year, 135 incumbents, 4.8% of those running for re-election, have lost, continuing an elevated rate of incumbent primary defeats compared to recent election cycles.
Of the 27 states that have held primaries so far, eight have Democratic trifectas, 15 have Republican trifectas, and four have divided governments. Across these 27 states, there are 3,525 seats up for election, 57% of the nationwide total.
De Blasio drops out of NY-10 as poll shows a plurality of voters still undecided
Former New York City Mayor Bill de Blasio dropped out of New York’s 10th Congressional District primary on Wednesday, saying, “It’s clear the people of #NY10 are looking for another option and I respect that. Time for me to leave electoral politics and focus on other ways to serve.”
A recent independent Data for Progress poll of likely primary voters showed a plurality of voters—27%—undecided. New York City Council member Carlina Rivera had 17% in the poll, state Assemblymember Yuh-Line Niou had 14%, and prosecutor Daniel Goldman had 12%. Next were former U.S. Rep. Elizabeth Holtzman (9%), state Assemblymember Jo Anne Simon (8%), and current 17th District U.S. Rep. Mondaire Jones (7%).
The poll’s margin of error is +/- 4 percentage points.
10th District incumbent Rep. Jerry Nadler is running in New York’s 12th this year, where he’ll face Rep. Carolyn Maloney in the Democratic primary.
Former Rep. Nita Lowey backs Sean Patrick Maloney in NY-17
Over in New York’s redrawn 17th District, former U.S. Rep. Nita Lowey (D) endorsed Sean Patrick Maloney. Lowey retired in 2021 after serving in the House since 1989. Maloney chairs the Democratic Congressional Campaign Committee, and Lowey served as the committee’s first female chair from 2001 to 2003.
Daily Koswrote, “Almost three-quarters of the new 17th’s denizens live within the boundaries of the seat Lowey held until last year.” Incumbent Mondaire Jones chose to run in the redrawn 10th after Maloney announced he was running in the 17th. Maloney currently represents 25% of the new 17th.
State Sen. Alessandra Biaggi is running in the primary. Her endorsers include Rep. Alexandria Ocasio-Cortez (D-N.Y.) and The Working Families Party (which had endorsed Maloney when he was running in a different district, as we wrote last month). Maloney has endorsements from several local officials and the New York AFL-CIO.
U.S. Senate candidates debate in Wisconsin, Sanders endorses Barnes
Five U.S. Senate candidates—Lt. Gov. Mandela Barnes, state Treasurer Sarah Godlewski, Milwaukee Bucks executive Alex Lasry, Outagamie County Executive Tom Nelson, and political organizer Steven Olikara—participated in a televised debate hosted by TMJ4 News in Milwaukee on July 17.
The Associated Press’ Scott Bauer wrote, “Polls show [Barnes and Lasry] are leading the crowded field. Both Barnes and Lasry focused on Johnson, and not one another, in the debate as they advocated for getting rid of the Senate filibuster to pass a bill protecting abortion rights, passing gun safety laws, protecting the environment and tax changes to benefit the middle class.”
Bauer also wrote that Godlewski “took aim at her male opponents on abortion.” Godlewski said, “Where were you guys talking about reproductive rights at a UW forum when they asked you what your priorities were in the U.S. Senate? I was the only one talking about reproductive rights because for me this is not an afterthought.” During the debate, all candidates criticizedthe Supreme Court’s decision to overturn Roe v. Wade. Barnes, Godlewski, Lasry, and Nelson said they supported getting rid of the filibuster in the U.S. Senate to codify legalized abortion protections, and Nelson said the Supreme Court should be expanded.
On July 18, U.S. Sen. Bernie Sanders (I-Vt.) endorsed Barnes, saying Barnes “knows the struggles of the working class” and is “the best positioned progressive candidate who will win both the primary and defeat Ron Johnson in November.”
The same day, a press release from Nelson’s campaign highlighted an April endorsement from Our Wisconsin Revolution, a state affiliate of the group Our Revolution, which Sanders founded in 2016. The statement quoted Nelson: “No one has done more to advance the cause of workers against the billionaire class than Bernie Sanders and push for Medicare for All, a Green New Deal and opposing dirty fossil fuel pipelines like Line 5. I’m proud to be the only Wisconsin campaign that’s been leading the way on these issues and will continue to.”
Eight candidates are running in the Aug. 9 primary.
Competitiveness data: Michigan and Ohio
On Aug. 2, Michigan holds statewide primaries and Ohio holds state legislative primaries. We’ve crunched some numbers to see how competitive the primaries will be compared to recent election cycles.
Michigan
Ohio
Notes on how these figures were calculated:
Candidates per district: divides the total number of candidates by the number of districts holding elections.
Open districts: divides the number of districts without an incumbent running by the number of districts holding elections.
Contested primaries: divides the number of major party primaries by the number of possible primaries.
Incumbents in contested primaries: divides the number of incumbents in primaries by the number seeking re-election in the given election cycle.
Here’s what’s in store for you as you start your day:
113 statewide ballot measures certified for the ballot, including new firearms measure in Oregon
Dan Cox wins Republican nomination for governor of Maryland, Democratic primary too close to call
Ohio Supreme Court overturns state’s congressional district boundaries; map to still be used for 2022 elections
113 statewide ballot measures certified for the ballot, including new firearms measure in Oregon
As of July 20, 113 statewide measures have been certified for the ballot in 35 states, 27 less than the average number certified at this point in other even-numbered years from 2010 to 2020.
Here’s an update on the latest ballot measure activity:
The initiative (#17) would enact a law outlining a procedure to apply for a permit to purchase a firearm. Local law enforcement would issue permits. Applicants would need to pay a fee, submit a photo ID, be fingerprinted, complete approved safety training, pass a criminal background check, and not be prohibited from possessing firearms. Law enforcement would be able to deny a permit to an applicant believed to be a danger to oneself or others. The initiative would also criminalize the manufacture, importation, possession, use, purchase, sale, or otherwise transferring of ammunition magazines capable of holding more than 10 rounds.
Existing law requires a seller or transferor to request a background check before firearm purchase.
Oregon voters will be deciding on three other ballot measures this fall. The state Legislature voted to refer an amendment that would add affordable health care as a fundamental right to the Oregon Constitution and an amendment that would repeal language allowing slavery or involuntary servitude as criminal punishment. The third measure is a ballot initiative that would disqualify state legislators from re-election for unexcused legislative absenteeism, such as for legislative walkouts.
Between 2010 and 2020, an average of 64 ballot initiatives were filed in Oregon each election cycle, with an average of five making the ballot. In 2022, 60 citizen initiatives were filed for the ballot and two qualified.
Signatures have been submitted and are pending verification for another 20 initiatives in 11 states:
From 2010 to 2020, the average number of statewide ballot measures certified in an even-numbered year was 164. By this time during even-numbered years from 2010 through 2020, an average of 140 statewide measures had been certified for the ballot.
Dan Cox wins Republican nomination for governor of Maryland, Democratic primary too close to call
Dan Cox won the Republican nomination for governor of Maryland in Tuesday’s primary. As of writing, the Democratic primary remained too close to call, with Wes Moore and Tom Perez leading the 10-candidate field.
As of writing, Cox had 56% of the vote, followed by Kelly Schulz with 40%. Cox, who serves in the state House of Delegates and is an attorney, was endorsed by former President Donald Trump (R). Schulz, a former state secretary of commerce, was endorsed by current Gov. Larry Hogan (R), who is term-limited.
According to The Washington Post, it could be several days until a winner can be declared in the Democratic primary. Voters in the state requested a record number of mail ballots—approximately 500,000. Election officials may not begin counting mail ballots until July 21 at 10 a.m., according to state law. Election officials in the state estimate that some counties may finish counting these mail-in ballots by July 29, while other counties may not finish until early August.
Wes Moore worked in the finance sector and as CEO of the Robin Hood Foundation, in addition to writing books about race, equity, and opportunity in America. Tom Perez served as chairman of the Democratic National Committee from 2017 to 2021 and as the U.S. secretary of labor in the Obama administration from 2013 to 2017.
Two election forecasters say the general election leans towards Democrats and a third says they are likely to win.
So far this year, 135 state legislative incumbents—29 Democrats and 106 Republicans—have lost to primary challengers.
Across the 27 states that have held primaries, 4.8% of incumbents running for re-election have lost, an elevated level of incumbent losses compared to previous cycles.
These totals include data from Maryland, which held state legislative primaries on July 19. No incumbents have lost in these primaries so far, but 55 races remain uncalled.
This year, Republican incumbents have lost at a higher rate than Democrats. Of the 1,574 Republican incumbents who filed for re-election, 106 (6.7%) have lost to primary challengers. For Democrats, 29 of the 1,208 who filed for re-election (2.4%) have lost.
But fewer Democratic incumbents are facing primary challengers than their Republican counterparts. Around 25% of Democratic incumbents who filed for re-election faced contested primaries compared to 32% for Republicans.
In these 26 states, 2,784 incumbents filed for re-election, 806 of whom (29%) faced primary challengers.
Thirty of these 135 incumbent defeats (22%) were guaranteed due to redistricting. When states redraw legislative lines, incumbents can oftentimes end up in a new district with other incumbents leading to incumbent v. incumbent primaries or general elections. Since, in these races, there are more incumbents running than nominations or seats available, at least one incumbent must lose.
Of the 27 states that have held primaries so far, eight have Democratic trifectas, 15 have Republican trifectas, and four have divided governments. Across these 27 states, there are 3,525 seats up for election, 57% of the nationwide total.
The figures for 2022 will likely increase. There are currently 61 uncalled primaries featuring incumbents—39 Democratic and 23 Republican—and 20 primaries featuring New York Senate incumbents scheduled for Aug. 23.
Ohio Supreme Court overturns state’s congressional district boundaries; map to still be used for 2022 elections
The Ohio Supreme Court ruled 4-3 on July 19 that the congressional district boundaries that the Ohio Redistricting Commission adopted on March 2 were unconstitutional. The state’s 2022 primaries took place on May 3 under the overturned boundaries, so the state will again use those boundaries in the November general elections.
The state supreme court directed the Ohio General Assembly to pass a compliant redistricting plan within 30 days. If the general assembly fails to do so, the court ordered the redistricting commission to then adopt a plan within another 30 days. That map would be used for the state’s 2024 congressional elections.
Justices Maureen O’Connor (R), Michael Donnelly (D), and Melody Stewart (D) signed the state supreme court’s majority opinion, with Justice Jennifer Brunner (D) filing a concurring opinion. Justices Sharon Kennedy (R), Pat DeWine (R), and Pat Fischer (R) wrote or joined dissenting opinions.
Governor Mike DeWine (R) first signed a new congressional map into law on November 20, 2021, after the state Senate voted to approve it 24-7 and the state House approved it 55-36. On January 14, the Ohio Supreme Court struck down the state’s enacted congressional map and ordered the legislature to redraw it. On February 9, Ohio legislative leaders said they would not draw a new congressional map, meaning responsibility for the new map fell to the Ohio Redistricting Commission. The commission approved redrawn congressional boundaries in a 5-2 vote along party lines.
Welcome to Hall Pass. This newsletter keeps you plugged into the conversations driving school board politics and governance. Each week, we bring you a roundup of the latest on school board elections, along with sharp commentary and research from across the political spectrum on the issues confronting school boards in the country’s 14,000 school districts. We’ll also bring you the latest on school board elections and recall efforts, including candidate filing deadlines and election results.
In today’s edition, you’ll find:
On the issues: The debate over which books to include in school libraries
Subscriber survey
School board filing deadlines, election results, and recall certifications
A brief history of public education in early America
Extracurricular: education news from around the web
Candidate Connection survey
School board candidates per seat up for election
Reply to this email to share reactions or story ideas!
On the issues
In this section, we curate reporting, analysis, and commentary on the issues school board members deliberate when they set out to offer the best education possible in their district.
The debate over which books to include in school libraries
Whether certain books addressing topics related to sex and gender are age-appropriate and ought to be included in school libraries has been a topic of debate in recent months. Debate at school board meetings has often centered on a handful of books, such as Gender Queer: A Memoir.
The Chicago Tribune Editorial Board writes that parents and school boards should not seek the removal of books discussing sex and gender, such as Gender Queer: A Memoir and Lawn Boy,from school libraries. The Editorial Board says removing such books would be harmful to students and prevent them from exploring different perspectives and expanding their knowledge. The Board also says the books are not pornographic, so parents do not need to protect their children from the material.
Katelynn Richardson writes that Gender Queer: A Memoir contains sexually explicit material that is not age-appropriate for minors and promotes progressive ideas over educational value. Richardson says removing explicit content from school libraries is not the same as book banning or censorship. She says it is the job of parents to control the books their kids read in the same way they control what movies they watch and what video games they play.
“It’s too bad proponents of book banning can’t step off their soapboxes long enough to see the matter through the eyes of students — and their own children. School libraries add a unique element to the educational experience. They invite students to an expanse of knowledge, perspective and exploration beyond the bounds of what their district’s coursework offers. … Parents and community members hopping on board the book-banning bandwagon may think they’re safeguarding children — but they’re hurting them. A book that is actually pornographic should never find its way to a school district library shelf, or any public library shelf. But that’s not the case with the books being targeted. Both “Gender Queer” and “Lawn Boy” have received the American Library Association’s Alex Award that annually recognizes 10 books written for adults that have special appeal to youths ages 12 through 18. By calling for their removal — or incineration — conservatives are blinkering kids in the worst way.”
“People are sensitive to book banning. That’s a good thing. But special considerations apply to the catalogs in school libraries. It’s foolish to pretend, like the librarians featured in today’s New York Times story, that removing books like Gender Queer: A Memoir from schools due to sexually explicit material is a slippery slope to censorship. … Librarians would be in the spotlight less if they did their job and selected age-appropriate books that provide educational value, rather than ones that promote a progressive social agenda. I have no sympathy for anyone who loses her job because she wanted to put pornographic material within the reach of minors. While not a license for harassment, it’s absolutely fair for parents to question decisions, speak out at school board meetings, and publicly push back. This is not about viewpoint diversity. It’s about protecting children. Parents have always had the responsibility for overseeing what their children are exposed to: in movies, video games, activities, social life, and yes, books.”
Tell us what’s happening in a school district near you!
We’re still accepting responses to our survey on teacher staffing. We want to hear from you!
School districts around the country face diverse issues and challenges. We want to hear what’s happening in your school district. Complete the very brief survey below and we may share your response with fellow subscribers in an upcoming newsletter.
Today’s question:
News outlets have reported that some districts face a teacher shortage heading into the 2022-2023 school year. Is this an issue in a school district near you? What challenges does it present for the district? How is the district dealing with these challenges, if they exist?
School board update: filing deadlines, election results, and recall certifications
Ballotpedia has historically covered school board elections in about 500 of the country’s largest districts. We’re gradually expanding the number we cover with our eye on all of the roughly 14,000 districts with elected school boards.
Election results from the past week
Maryland
We covered the following school board elections on July 19.
There are over 13,000 public school districts in the United States, most of them overseen by elected school board officials. But that hasn’t always been the case. Go back far enough and you’ll find a time when public education was virtually nonexistent. Today, we’re going to look at the development of school districts and school boards from the colonies through the beginning of the 19th century. We’ll be back in a future edition to continue our look at the development of public education through to the present.
Contemporary public education finds its clearest and most direct origins in 17th-century New England colonies. At the time, a widespread belief in the colonies and Europe was that education was a private concern. Sir William Berkeley, the governor of Virginia, said in 1671 that Virginia, in not providing free education, was following “the same course taken in England out of towns; every man according to his own ability in instructing his children.” But in New England, towns and eventually the Massachusetts Bay Colony General Court had started taking public action related to education decades earlier.
Boston was the site of the country’s first public school. City officials hired a schoolmaster in 1635 to run the Boston Latin Grammar School. According to Wayne J. Urban and Jennings L. Wagoner, Jr. in their book American Education: A History, “Within the first decade of settlement, seven of the twenty-two towns in Massachusetts had taken some public action on behalf of schooling.”
In 1642, the Massachusetts Bay Colony General Court passed a law requiring the head of the household to provide education for his children in the home. In 1647, the General Court passed a law requiring towns to provide children with education. The purpose of the law—known as the Old Deluder Satan Act of 1647—was to ensure among other things that all people were literate enough to read the Bible. The law required towns with 50 or more families to hire a teacher for the purpose of teaching reading and writing. Towns with 100 or more families were required to maintain grammar schools. The law, reflecting a subtle shift away from the belief that education was merely a private concern, specified that towns could be fined for noncompliance.
The Massachusetts law did not establish compulsory schooling or require towns to pay the full cost of providing education. In most cases, families paid some amount of money in the form of tuition.
Town meetings were the primary way early public schools in New England were managed. Over time, responsibility for the day-to-day operations of schools fell to selectmen, the town government’s executive committees, and later to committees appointed to inspect school performance and make hiring and firing recommendations. These committees operated as a kind of early school board. According to Northwestern Law Professor Nadav Shoked, the committees arose because of “the town meeting’s inability to provide specialized and ongoing administration.”
A similar school governing structure spread beyond Boston through the colonial period. Shoked writes that “Wherever public education was introduced, a separate body to govern schools emerged.”
Public support for education developed haltingly throughout the rest of the country, with some colonies—and, later, states—advancing public education more quickly than others. According to University of South Carolina School of Law Professor Derek W. Black, “Public education in the North had taken hold in the late 1700s and early 1800s and had developed substantially by the eve of the war. But in the South, before Reconstruction, education was only sporadically available through the patchwork efforts of public, private, and religious institutions.” In 1779, Thomas Jefferson proposed a system of publicly-funded grammar schools in the Virginia General Assembly. “A Bill for the More General Diffusion of Knowledge” failed to pass. A revised bill, “An Act to Establish Public Education,” passed in 1796.
Six of the original 13 states mentioned education in their constitutions—Connecticut, Georgia, Massachusetts, North Carolina, Pennsylvania, and Rhode Island.
The Congress of the Confederation approved ordinances in 1785 and 1787 that, in addition to setting procedures for admitting new states, set aside a portion of the land in the Northwest Territories for schools.
The Constitution, ratified in 1788, did not mention education.
In 1789, the Massachusetts General Court passed the Massachusetts Education Act. The law adopted and reaffirmed many of the practices that had been commonplace in schools in towns like Boston, such as separate town committees charged with overseeing schools. The law also recognized, for the first time in the country’s history, the school district as a distinct legal entity. Throughout the 19th century, state courts would affirm the legal independence of the school district. Shoked writes that “by the nineteenth century’s final quarter, the school district’s status in American law, as a politically separate entity with secure governing powers, was unassailable.”
We’ll be back in a future edition to look at the development of districts and school board governance from the rise of the common school movement in the 1830s to the present.
Extracurricular: education news from around the web
This section contains links to recent education-related articles from around the internet. If you know of a story we should be reading, reply to this email to share it with us!
Take our Candidate Connection survey to reach voters in your district
Today, we’re highlighting survey responses from the upcoming Aug. 4 Metropolitan Nashville Board of Education school board general elections in Tennessee. Four seats are up for election. The primary was May 3.
Today, we’re featuring responses from Erin O’Hara Block (D), who is running to represent District 8, and Kelli Phillips (R), who is running to represent District 4.
Here’s how O’Hara Block answered the question, “Please list below 3 key messages of your campaign. What are the main points you want voters to remember about your goals for your time in office?”
“The top priority for MNPS in the coming years is a daily focus on recovery, in both academics and mental health. After three years of disrupted schooling, students are struggling to learn and teachers struggling to teach when trauma, grief, and other mental health needs go unaddressed. As a board member, I will rally school leaders, school district officials, community members, and city leadership to ensure Nashville creates integrated systems to support the mental health of students and educators both inside and outside of school.
“Investing smartly to solve problems. This means ensuring we have the funding that we need to support our schools. We also must focus on the goals of the district AND individual needs of individual schools. Strategic focus on the district’s most pressing problems – early literacy, middle grades math, and preparation for college and career – will lead to progress.
“Creating great schools through strong leaders, teachers, and staff. A great school starts with the people in the building and we need to ensure the district provides the resources and structures to recruit, compensate, develop, support and retain high-quality teachers, leaders, counselors, and support staff for every school.”
Click here to read the rest of O’Hara Block’s answers.
Here’s how Phillips answered the question, “Please list below 3 key messages of your campaign. What are the main points you want voters to remember about your goals for your time in office?”
“LISTEN to parents and ensure their voice is heard when all board decisions are made about our schools – including masks.
“END Critical Race Theory being taught in schools and the many ways politicians seek to push it via political learning such as the English “Wit and Wisdom” curriculum our schools are using
“FOCUS on what matters – better student outcomes in core subjects such as English, Math and Science.”
If you’re a school board candidate or incumbent, click here to take the survey. The survey contains more than 30 questions, and you can choose the ones you feel will best represent your views to voters. If you complete the survey, a box with your answers will display on your Ballotpedia profile. Your responses will also appear in our mobile app, My Vote Ballotpedia. If you’re not running for school board but there is an election in your community this year, share the link with the candidates and urge them to take the survey!
Here’s what’s in store for you as you start your day:
Nine states begin general election early voting in September
The Republican candidates who raised the most money for state legislative House races in 10 states
Meet us in Madison at the National Association of State Election Directors (NASED) Summer Conference
Nine states begin general election early voting in September
Although we’re still in the midst of a busy primary season, the Nov. 8 general elections are quickly approaching—in 111 days, to be precise. With November right around the corner, now is a good time to look at when states will begin allowing early voting in the general elections.
In this election cycle, 45 states and Washington, D.C., will conduct no-excuse, in-person early voting for the November elections. In states that permit no-excuse early voting, a voter does not have to provide an excuse for being unable to vote on Election Day. A total of nine states begin early voting in September. Another 33 states and Washington, D.C., begin early voting in October. Three states begin early voting in November.
The earliest start date for early voting takes place on Sept. 19, in Pennsylvania, where early voting begins when absentee/mail-in ballots become available. Another three states – Minnesota, South Dakota, and Wyoming – begin their early voting periods on Sept. 23.
Minnesota, South Dakota, and Wyoming will have the longest early voting periods, opening on Sept. 23 and closing on Nov. 7—a total of 46 days. See the chart below for more details.
In 2020, 42 states and Washington, D.C. conducted no-excuse, in-person early voting. The earliest start date for early voting took place on September 18 in Minnesota, South Dakota, Virginia, and Wyoming. Eight states began early voting in September. The remaining 34 states and Washington, D.C., began early voting in October.
Since 2020, Delaware, Kentucky, and South Carolina have implemented permanent, no-excuse voting policies.
Click the link below to learn more about early voting in your state.
The Republican candidates who raised the most money for state legislative House races in 10 states
Earlier this week, we brought you data from our partnership with Transparency USA on the Democratic candidates and officeholders who raised the most money for state legislative House races in 10 states. Today, we’re looking at the top Republican fund-raisers in those same states.
Four of these candidates and officeholders raised more than $1 million: Dade Phelan of Texas ($2.9 million), Carrie DelRosso of Pennsylvania ($2.1 million), James Gallagher of California ($1.8 million), and Timothy Moore of North Carolina ($1.7 million). One of these candidates, Erik Mortensen of Minnesota ($90,777), raised less than $100,000. Collectively, these candidates raised $11.81 million and spent $8.30 million.
You can see the list of candidates and officeholders in the table below. Click on a link below to learn more about these candidates and their campaigns.
This year, we plan to publish several hundred articles breaking down campaign finance numbers in the 12 states covered by Transparency USA: Arizona, California, Florida, Indiana, Michigan, Minnesota, North Carolina, Ohio, Pennsylvania, Texas, Virginia, and Wisconsin. To learn more about our partnership with Transparency USA, click below.
We exist to help solve one of the biggest issues state election directors face – the massive information gap. Voters come to the polls, ready to make their voices heard, but they don’t know who or what’s on the ballot until they get into the voting booth. A related problem for both voters and state election directors is that election administration is always changing. A few weeks ago, we introduced you to our Election Administration Legislation Tracker—a new tool for quickly and easily tracking election-related legislation in all 50 states.
Now, Ballotpedia founder and CEO Leslie Graves and Ken Carbullido, Vice President of Election Product and Technology Strategy, are attending the National Association of State Election Directors (NASED) Summer Conference July 19-20. It’s the first time the conference has been in-person since February 2020.
This ballot information gap is particularly big for local offices, especially for the thousands of races and tens of thousands of candidates running for positions on school boards, municipal and county governments and more. Now multiply this problem by every state and every county, city, town, and village in the country.
We’ve made our goal to cover every single elected position in the nation. That’s more than 500,000 officials. Leslie and Ken are scheduling meetings with NASED attendees to discuss how we can work together to close the information gap.
If you’re attending NASED and would like to meet with Leslie or Ken, you can schedule a meeting here.
Click below to learn more about our Election Administration Legislation Tracker.
The Checks and Balances Letter delivers news and information from Ballotpedia’s Administrative State Project, including pivotal actions at the federal and state levels related to the separation of powers, due process, and the rule of law.
This edition:
In this month’s edition of Checks and Balances, we review the United States Supreme Court’s (SCOTUS) recent decision affecting Chevron deference and the major questions doctrine; new federal legislation aiming to make task force guidance subject to the Congressional Review Act (CRA); and the continued revival of sue and settle at the Environmental Protection Agency (EPA).
At the state level, we take a look at a court case challenging a California ballot measure’s effect on pork production in other states as well as a recent court decision arguing that bumblebees are, in fact, fish.
We also highlight a new article from administrative law scholar Joseph Postell examining the ambiguity of expertise in the administrative state. As always, we wrap up with our Regulatory Tally, which features information about the 199 proposed rules and 279 final rules added to the Federal Register in June and OIRA’s regulatory review activity.
In Washington
SCOTUS rolls out major questions doctrine, stays silent on Chevron
What’s the story?
The United States Supreme Court in June issued decisions in two administrative law cases concerning judicial review of agency actions. While the court officially ushered in the major questions doctrine, it stayed silent on the future of Chevron deference.
In West Virginia v. Environmental Protection Agency, the court formally invoked the major questions doctrine for the first time to limit the scope of powers granted to the Environmental Protection Agency (EPA) through the Clean Air Act to regulate greenhouse gas emissions. The justices ruled 6-3 that, according to the major questions doctrine, the regulation of greenhouse gas emissions constitutes a significant policy question that should be determined by elected lawmakers in Congress rather than by agency staff. Post-decision commentary questioned how the decision could affect other delegations of authority and whether the major questions doctrine would replace Chevron deference as the court’s preferred tool for reviewing challenges to agency authority.
In Biden v. Texas, the court ruled 5-4 to uphold the U.S. Department of Homeland Security’s memoranda ending the Migrant Protection Protocols (MPP) program as a lawful final agency action consistent with federal immigration law and the Administrative Procedure Act (APA)—allowing the Biden administration to move forward with its plan to end the MPP. The decision in the case helped clarify the scope of agency discretion regarding immigration policy as well as the types of agency actions that the court considers to be final agency actions pursuant to the APA.
Senators propose broadening the Congressional Review Act’s scope
What’s the story?
U.S. Senator Dan Sullivan (R-Alaska) on June 16, 2022, introduced the Checks and Balances Act (S. 4427), which proposes to amend the Congressional Review Act (CRA) to make guidance issued by presidential task forces subject to a resolution of disapproval—a process that allows members of Congress to vote to nullify certain federal agency rules.
Sullivan stated that he authored S. 4427 in response to the Government Accountability Office’s (GAO) March determination finding that Congress cannot apply the CRA to President Biden’s coronavirus (COVID-19) vaccine mandate for federal contractors. GAO argued that the mandate did not qualify as a reviewable agency action for purposes of the CRA because President Biden’s Executive Order 14042 had directed the Safer Federal Workforce Task Force—rather than a federal agency—to bring about the mandate. GAO also claimed that the director of the Office of Management and Budget (OMB) “stepped into the shoes of the President and exercised his delegated discretionary authority when approving the Guidance, meaning OMB was not acting as an agency under CRA.”
Sullivan disagreed with the GAO’s reasoning, arguing in a press release that guidance issued by such presidential task forces, like the vaccine mandate for federal contractors, constitute “glaring loopholes in federal law.” He further argued that “Congress has a duty to check the President’s power in this area.”
U.S. Senators Cindy Hyde-Smith (R-Miss.), Steve Daines (R-Mont.), Roger Marshall (R-Kan.), and Mike Braun (R-Ind.) cosponsored the bill.
The U.S. Environmental Protection Agency (EPA) on May 23, 2022, demonstrated its renewed commitment to sue and settle by giving notice of a proposed a consent decree establishing a timeline for the agency to publish updated 2023 biofuel blending requirements.
Sue and settle is a term used to describe cases in which an outside group sues a federal agency in order to reach a settlement that is favorable to the regulatory goals of both. While EPA officials during the Trump administration prohibited sue and settle, describing it as “regulation through litigation,” Biden officials later reinstated the practice, referring to sue and settle as a “practical, economical and efficient path forward” for the EPA.
The EPA’s May consent decree aims to settle a lawsuit brought by the biofuel trade association Growth Energy in which the group asked the federal courts to set a timeline for the EPA to publish updated biofuel blending requirements for 2023. The settlement requires the EPA to propose 2023 requirements no later than September 16, 2022, and finalize those requirements by April 28, 2023.
SCOTUS to examine effect of California pork regulations on interstate commerce
What’s the story?
A case scheduled for argument before the U.S. Supreme Court during the upcoming term questions whether a California ballot measure regulating the in-state sale of pork products unlawfully regulates pork producers in other states. National Pork Producers Council v. Ross could clarify whether such state-specific actions, which can carry widespread regulatory implications for other states, violate federalism principles and the dormant Commerce Clause.
California voters in 2018 passed Proposition 12, which prohibited the sale of pork products in the state unless pork producers house their livestock according to certain space requirements and directed state agencies to issue implementing regulations. Plaintiffs in the case claim that California voters, who consume 13% of the nation’s pork but raise roughly 0.13% of the nation’s breeding herd, effectively forced out-of-state farmers to follow California’s agriculture regulations rather than the regulations in their own states. Such state action, according to plaintiffs, violates federalism principles and the dormant Commerce Clause—a legal doctrine derived from the Constitution’s Commerce Clause that bars states from passing legislation that ostensibly regulates interstate commerce.
The U.S. Department of Justice in June filed an amicus brief in support of pork producers, arguing in part, “States may not otherwise regulate out-of-state entities by banning products that pose no threat to public health or safety based on philosophical objections to out-of-state production methods or public policies that have no impact in the regulating State.”
Wayne Pacelle, president of the nonprofit groups Animal Wellness Action and the Center for a Humane Economy, disagreed with the Biden administration’s position. He told the San Francisco Chronicle, “It is shocking that the Biden administration is attacking the rights of states to enact anti-cruelty and food safety laws that are nonexistent at the federal level … The state’s interest in protecting the interests of Californians could not be clearer.”
California court claims insects are fish to uphold bumblebee regulation
What’s the story?
The California Third District Court of Appeals of May 31, 2022, upheld a broad interpretation of the California Endangered Species Act (CESA) that allows the California Fish and Game Commission to consider bumblebees as fish under the meaning of the act and, therefore, to list them as endangered species.
The CESA speaks to birds, mammals, fishes, amphibians, reptiles, and plants, but is silent on insects. The California Fish and Game Commission in 2019 nonetheless accepted a petition to list four bumblebee species as endangered. Agricultural groups sued and Judge James P. Arguelles of the Superior Court of Sacramento County overturned the listing in Almond Alliance of California v. Fish and Game Commission, arguing that the CESA does not cover insects.
The court of appeal disagreed, finding that the state legislature had intended that the CESA cover insects since lawmakers had previously defined “fish” in the state’s Fish and Game Code to mean “a wild fish, mollusk, crustacean, invertebrate, amphibian, or part, spawn, or ovum of any of those animals.” The court further argued that the word “invertebrate” in the Fish and Game Code definition does not strictly refer to aquatic species, stating, “Although the term fish is colloquially and commonly understood to refer to aquatic species, the term of art employed by the Legislature in the definition of fish in section 45 is not so limited.”
Plaintiffs in the case can appeal the decision to the California Supreme Court. No further action had been taken as of July 14, 2022.
Examining the ambiguity of administrative expertise
A recent article in Social Philosophy and Policy from administrative law scholar Joseph Postell aims to examine the role of expertise in the administrative state: what is it, who wields it, and how it affects policy making. In “The Ambiguity of Expertise in the Administrative State,” Postell argues that the Progressive Era view favoring the separation of politics and administrative expertise was abandoned by the mid-twentieth century, resulting in continued ambiguity surrounding the notion of agency expertise:
“In short, the principle of rule by experts occupies a central but ambiguous place in the Progressives’ political theory, and in the administrative state that they founded. This essay describes the Progressives’ writings and views on the idea of expert rule in the administrative state. It then explains how the ambiguity in that idea led to political and theoretical problems that Progressives never fully resolved. These problems occupied and divided Progressives during the 1912 presidential election and throughout the 1910s and 1920s. The New Deal saw Progressives abandon the idea of neutral expertise in favor of a theory of presidential management of administration, and scholars of political science and public administration largely abandoned the separation of politics and administration by the mid-twentieth century. This leaves the place of expertise in the administrative state unclear still today. The administrative state requires both neutral expertise and democratic legitimacy but has never fully reconciled the tensions between these principles.”
Want to go deeper?
Click here to read the full text of “The Ambiguity of Expertise in the Administrative State” by Joseph Postell.
OIRA’s June regulatory review activity included the following actions:
Review of 38 significant regulatory actions.
Four rules approved without changes; recommended changes to 32 proposed rules; one rule withdrawn from the review process; one rule subject to a statutory or judicial deadline.
As of July 1, 2022, OIRA’s website listed 119 regulatory actions under review.
Economy and Society is Ballotpedia’s weekly review of the developments in corporate activism; corporate political engagement; and the Environmental, Social, and Corporate Governance (ESG) trends and events that characterize the growing intersection between business and politics.
ESG Developments This Week
In Washington, D.C.
The SEC undoes Trump administration rules on proxy advisory services
On July 13, the Securities and Exchange Commission (SEC) voted to undo rules placed on proxy advisory services during the Trump administration. The advisory services – and especially the two dominant services, Institutional Shareholder Services (ISS) and Glass-Lewis – have long been considered among the key players in the ESG universe. The SEC agreed with the advisory services that the rules were, in their view, unduly burdensome and inhibited their ability to act independently. Reuters reported as follows:
“The U.S. securities regulator voted on Wednesday to rescind rules introduced under former President Donald Trump that critics said impeded the independence of firms that advise investors on how to vote in corporate elections.
The move is the latest installment in a long-running battle over how to regulate proxy advisers like Institutional Shareholder Services and Glass Lewis, which advise investors how to cast their ballot on issues including the election of directors, merger transactions and shareholder proposals….
In 2020, the SEC introduced rules that increased proxy advisers’ legal liability and required them to share recommendations early on with corporate executives. Investor advocates said the changes tilted the scales in favor of corporate bosses over investors.
Wednesday’s rules specifically rescind two exemptions, including a requirement that proxy advisers provide a first look to corporations of the advice to be placed on the agenda. It also removes a requirement that allowed clients of proxy firms to be notified of any written responses to their advice from companies.
The SEC, whose composition has changed under President Joe Biden, first proposed these rule changes in November and said investors had expressed concerns that the conditions created increased compliance costs for proxy advisers and impaired the independence and timeliness of their advice….
“While we applaud the Commission for removing some of the 2020 rule’s more draconian provisions, the rule should have been rescinded in its entirety,” ISS said in a statement.
Not everyone welcomed the changes.
“The SEC has offered no justification for abandoning a decade’s worth of bipartisan, consensus-driven policymaking,” said Jay Timmons, chief executive of the National Association of Manufacturers, adding that his group would be filing a lawsuit in the coming weeks to “protect manufacturers from proxy advisory firms’ outsized influence.””
An SEC proposal aims to make it easier for activists to weigh in
Also on July 13, the SEC proposed a rule that would make it more difficult to keep shareholder proposals off their proxy statements. If enacted, the rule would strengthen activists’ positions, making it more difficult for corporations to dismiss them and their proposals. And while the new rule would apply to all proposals, not just to those introduced by ESG-inspired activists, analysts nevertheless view this as a victory for ESG:
“The Securities and Exchange Commission on Wednesday proposed expanding investors’ ability to resubmit proposals on environmental, social and governance issues as the 2022 proxy season sees record levels of votes and Republicans ramp up criticisms of the agency.
The agency voted 3-2 to propose amending a provision known as Rule 14a-8, to require companies to jump through additional hoops when seeking to prevent shareholders from voting on corporate proposals.
If finalized, the changes would likely make it much harder for companies to avoid votes on ESG matters in the future.
The rule as currently written allows shareholder proposals to be excluded if companies say they have been “already substantially implemented,” that they “substantially duplicate” another current proposal, or that they substantially duplicate a proposal that was previously submitted at the company’s prior shareholder meetings, according to the agency.
The SEC proposed amending each of these options so that companies would have to meet a higher bar….
During an open meeting Wednesday, SEC Chairman Gary Gensler said the amendments would provide much-needed clarity. The SEC received more than 700 requests to block shareholder resolutions in the last three proxy seasons, according to the agency. Nearly half of those requests used at least one of the three arguments.
“I believe these proposed amendments would provide a clearer framework for the application of this rule, which market participants have sought,” Gensler said. “They also would help shareholders exercise their rights to submit proposals for consideration by their fellow shareholders.”
Republican commissioners Hester Peirce and Mark Uyeda, who was sworn into the agency last month, voted against the change. Both said the move is another example of regulatory whiplash as the SEC unwinds or mitigates actions taken during the Trump administration.
Peirce said the proposal would force executives to rehash old issues year-after-year, “narrowing companies’ ability to exclude proposals.””
WSJ: “SEC’s Gensler Casts Doubt on Prospects for China Audit Deal”
Lastly, on July 13, SEC Chairman Gary Gensler sounded pessimistic about reaching a deal with the People’s Republic of China on company audits. For years, according to analysts, American capital markets have questioned the validity of self-reported corporate data from China and have argued that the lack of a substantive, verifiable audit process gives Chinese companies an unfair advantage over those from other nations.
In 2020, Congress passed and President Trump signed the Holding Foreign Companies Accountable Act, which will require American exchanges to de-list companies that do not permit their audits to be checked by external authorities.
According to proponents, the urgency of validating foreign corporate audits will take on far greater pertinence when the SEC issues its final rule on climate disclosures. If investors and legislators feel that U.S. companies are disadvantaged by traditional financial audit discrepancies, then that sentiment is likely to grow when U.S. companies are forced to conduct environmental audits as well, they argue. The Wall Street Journal reported:
“Securities and Exchange Commission Chairman Gary Gensler expressed doubt Wednesday that negotiators in Washington and Beijing will reach an agreement over audits that is necessary to prevent Chinese companies from being delisted by U.S. stock exchanges.
Talks between the two countries had intensified in recent months ahead of a looming deadline for American regulators to gain access to Chinese companies’ audit papers as required under U.S. law. Chinese authorities had become vocal in recent months about their desire to avoid the delisting consequence of missing the deadline….
“It’s quite possible that there’s no deal here,” Mr. Gensler told reporters after an SEC rule-making meeting. “I’m not particularly confident.”
The HFCAA took effect in 2021 and bans U.S. trading of securities of companies whose auditors can’t be inspected by the American audit watchdog for three consecutive years. That gives Chinese companies until spring 2024 to comply, though Congress is weighing bipartisan legislation that would shorten the deadline by a year.
The SEC has identified about 150 companies as noncompliant following the release of their latest annual reports, including Chinese e-commerce giants JD.com Inc. and Pinduoduo Inc. and restaurant operator Yum China Holdings Inc.
Chinese authorities have long cited national-security concerns as the basis for declining to allow the U.S. Public Company Accounting Oversight Board, or PCAOB, full access to company audit papers.
At the heart of the dispute are profound differences in the two countries’ understanding of what information threatens national security. U.S. officials say company audit papers should not contain anything sensitive. But for China’s authoritarian government, uncensored information of any sort is a risk. Data from large Chinese companies could, for instance, provide insights into the nation’s economy that aren’t available in tightly controlled government reports.
Officials at the SEC and PCAOB have repeatedly said they have little wiggle room under the law to make accommodations for Chinese firms….
In anticipation of the potential delisting from U.S. exchanges, many U.S.-listed Chinese companies have pursued alternative listings in Hong Kong, but their trading volumes in the Asian financial hub still trail their American counterparts.”
In the States
Missouri Treasurer asks the legislature to address ESG influence on public pensions
Last week, Missouri Treasurer Scott Fitzpatrick (R) – who is currently campaigning to be the state’s next auditor – pled with state legislators to address ESG, which he argues has harmful consequences for the state:
“The Missouri legislature needs to examine who is making investments of taxpayer funds held in public pensions, according to the state treasurer.
Scott Fitzpatrick, a candidate for the Republican nomination for state auditor, highlighted his concern during a recent visit to St. Louis. He believes a top legislative priority should be acting on the state’s investment relationships with any Environmental, Social and Governance (ESG) Funds through public pension systems.
“I think the legislators should work on legislation to address the impacts of ESG investing and make sure that state pension plans are not allowing their assets to be voted by asset managers that are advancing a woke political agenda,” Fitzpatrick, who was elected to a full term as treasurer in November 2020, said in an interview with The Center Square. “We’re seeing that in companies like Black Rock.”
Last month, Fitzpatrick distributed a media release in an effort to protect the Missouri State Employees’ Retirement System’s investments “from being used by activist investment managers to advance left-wing social and political causes, which are harmful to shareholders and violated their fiduciary obligations to Missourians.”
Fitzpatrick said state government must take back control of how funds are being managed and proxy votes cast….
Fitzpatrick predicted the federal government will embrace more ESG initiatives through the Federal Deposit Insurance Corp., SEC, the Department of Labor, the Environmental Protection Agency and other rule-making organizations.”
On Wall Street and in the private sector
Best-returning ESG fund is cautious and contrarian
The top-returning emerging-markets ESG fund managed to outperform its competitors by a wide margin over the last six months by adopting an unusual strategy—avoiding the hot tech names:
“The top-performing ESG fund for emerging markets surpassed its peers in the first half of 2022 by adopting a low-risk strategy that rejected tech companies Tencent Holdings Ltd., Alibaba Group Holding Ltd. and Taiwan Semiconductor Manufacturing Co. Ltd.
The Robeco QI Emerging Conservative Equities fund declined 4.9% this year, while the 15 largest actively managed ESG-labeled emerging market equity funds plunged about 23% on average, according to data compiled by Bloomberg.,,,
Top holdings in Robeco’s $2.2 billion fund are Samsung Electronics Co. Ltd., Infosys Ltd. and Bank of China Ltd. By comparison, TSMC ranks as the largest investment for all of the other biggest ESG emerging markets funds, which also have sizable stakes in Tencent and Alibaba. Shares of TSMC, Tencent and Alibaba have fallen as much as 26% this year amid rising global concerns about inflation and slowing economies.
Tech and financials are the biggest holdings in all of the biggest 15 funds, which also focus on four countries — China, Taiwan, South Korea and India. The funds largely avoid markets in Latin America, Africa and other emerging regions. This bias can divert greener capital that poorer countries need to decarbonize their economies and raise living standards….
Rotterdam-based Robeco said its fund’s success reflects a strategy of hand-picking stocks that are considered low risk and perform well over longer time horizons, and a willingness to deviate from its benchmark — the MSCI Emerging Markets Index — by as much as 10%.”
