Nondelegation doctrine resurfaces in challenge to Michigan coronavirus orders

The Michigan Supreme Court on October 2 revived the nondelegation doctrine in an opinion holding in part that Michigan’s Emergency Powers of the Governor Act (EPGA) unconstitutionally delegates legislative power to the executive branch.

Governor Gretchen Whitmer (D) claimed that the declared states of emergency and disaster in response to the coronavirus pandemic authorized her to issue executive orders instituting coronavirus-related restrictions. Whitmer stated that the EPGA and the Emergency Management Act (EMA) allowed her to extend those emergency declarations without the state legislature’s approval.

Medical groups filed suit in the United States District Court for the Western District of Michigan to challenge an executive order, since rescinded, that placed restrictions on nonessential medical and dental procedures.

The district court asked the Michigan Supreme Court to consider in part whether the EPGA or the EMA violated the nondelegation doctrine.

The majority held that the EMPGA violated the nondelegation doctrine because it delegated lawmaking authority to the executive branch. Justice Stephen Markman wrote in the majority opinion, “[T]he EPGA is in violation of the Constitution of our state because it purports to delegate to the executive branch the legislative powers of state government— including its plenary police powers— and to allow the exercise of such powers indefinitely.”

Justices McCormick, Bernstein, and Cavanagh, and Bernstein disagreed with the majority’s conclusion. The justices claimed that the United States Supreme Court and the Michigan Supreme Court have historically applied the nondelegation doctrine via a “standards” test (i.e. intelligible principle test) that only strikes down delegations of authority without guiding standards for agency discretion. The delegations of authority under the EPGA, the justices argued, contained sufficient guiding standards.

Justice Viviano agreed with the majority’s holding and suggested that the court in future cases adopt the nondelegation doctrine approach put forth by U.S. Supreme Court Justice Gorsuch in _Gundy v. United States_, which focuses on whether Congress delegated lawmaking power to the executive rather than whether Congress provided a guiding standard.

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West Virginia state legislator resigns

On Oct. 3, Delegate John Mandt Jr. (R) resigned from the West Virginia House of Delegates. He announced his resignation following accusations that he made discriminatory social media posts against gay people and Muslims. 

As reported by Cumberland Times-News, Mandt responded to the accusations in a deleted Facebook post: “Everything electronic can be fabricated. It’s by design, my family, my business are being attacked.” On the night of his resignation, the West Virginia House of Delegates issued a statement in which Mandt said, “Right now, my focus and priority needs to be on my family and business, and feel it is best at this time to terminate my campaign and make room (for) other individuals to serve the state.” Mandt was elected to the West Virginia House of Delegates in 2018.

Heading into the general election, the partisan composition of the West Virginia House of Delegates is 57 Republicans, 41 Democrats, one independent, and one vacancy. West Virginia has a Republican state government trifecta. A trifecta exists when one political party simultaneously holds the governor’s office and majorities in both state legislative chambers. 

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Recall effort against Colorado Gov. Polis approved for circulation

A recall effort against Colorado Gov. Jared Polis (D) was approved for circulation on September 14. Supporters of the recall effort need to submit 631,266 signatures by November 13 to require a recall election.

The recall effort is being organized by Lori Ann Cutunilli and Greg Merschel. Last year, Merschel was part of a different group that tried and failed to recall Polis. The new recall effort criticizes Polis over his use of executive orders in response to the coronavirus pandemic. Executive orders described in the recall petition include the mask mandate and the closing of businesses and houses of worship due to the pandemic. Merschel said the following on his reasons behind the second recall effort, “He’s [Polis] ruling the state by executive order. He’s usurping the legislature.”

Polis’ office issued the following statement in response to the recall effort, “Since day one, Governor Polis has been focused on delivering real results for Coloradans across the state, and he has done just that. He has delivered on his promise to provide free full-day kindergarten to Colorado’s children regardless of zip code, fought tooth and nail to lower the cost of health care, taken bold climate action putting Colorado on the path to 100% renewable energy by 2040, and cut taxes for small businesses. Now during this unprecedented pandemic, Colorado has been a model for the country thanks to the bold and swift actions taken by Governor Polis including being one of the first states to reopen. Like the majority of Coloradans, the Governor believes that playing politics during this challenging time for our state and country is simply inappropriate and shameful.”

Colorado has a Democratic state government trifecta. A state government trifecta exists when one political party simultaneously holds the governor’s office and both state legislative chambers. Democrats control the state Senate by a 19-16 margin and the state House by a 41-24 margin. Polis was elected as Colorado’s governor in 2018 with 53.4% of the vote.

Eighteen gubernatorial recall efforts are currently underway in 2020. Nine of those efforts are against Michigan Gov. Gretchen Whitmer (D). From 2003 to 2019, Ballotpedia tracked 21 gubernatorial recall efforts. During that time, two recalls made the ballot, and one governor was successfully recalled. Former California Gov. Gray Davis (D) was recalled in 2003 and replaced by Arnold Schwarzenegger (R). In 2012, former Wisconsin Gov. Scott Walker (R) was retained in a recall election. The only other governor to ever be successfully recalled was former North Dakota Gov. Lynn Frazier (R) in 1921.

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Whitener, Serns compete in Washington State Supreme Court election

Incumbent G. Helen Whitener and Richard Serns are running in the special general election for Washington State Supreme Court Position 6 on November 3, 2020.

Whitener was appointed by Governor Jay Inslee (D) on April 13, 2020, following Justice Charles K. Wiggins’ retirement. Whitener was previously a judge on the Pierce County Superior Court, on the Washington Board of Industrial Appeals, and an attorney in private practice.

Whitener said that the main issue in the election is experience. She said, “I would not get on a plane with a pilot who just got his license and hadn’t gotten some flying under the guidance of a well-seasoned pilot… That might be a bad analogy but it is very similar to what we’ve been discussing.” 

Richard Serns is a former school administrator. Serns responded to Ballotpedia’s Candidate Connection survey and said his professional experience includes working as a superintendent of schools, as an adjunct law school professor, as the lead negotiator for collective bargaining agreements, and as a Title IX, non-discrimination, anti-bullying, and anti-harassment compliance officer.

Serns said the constitution does not require prior experience in law to serve on the court, and that “sometimes an outsider can bring a new set of eyes and that can be helpful to deliberations.” He also argued that his experience as an administrator gives him the skillset for a position on the court: “The skillset is listening carefully, asking probing questions, research, research, research, deliberate, confer and write,” he said. “All of those things I’ve had extensive experience at.”

Whitener is one of five justices on the nine-member Washington State Supreme Court appointed by Democratic governors to fill vacancies.

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California governor appoints Jenkins as first nominee to state supreme court

California Gov. Gavin Newsom (D) appointed Martin Jenkins to the California Supreme Court on October 5, 2020. Pending confirmation by the state Commission on Judicial Appointments, Jenkins will succeed Justice Ming Chin, who retired on August 31, 2020. Jenkins is Newsom’s first nominee to the seven-member supreme court.

Under California law, state supreme court justices are recommended by the Commission on Judicial Nominee Evaluation to the governor. The governor then selects the new justice, who must be confirmed by the state Commission on Judicial Appointments.

Jenkins was an associate judge on the California First District Court of Appeal, Division Three, from 2008 to 2019. He was appointed by Gov. Arnold Schwarzenegger (R). He stepped down in 2019 after Gov. Newsom appointed Jenkins as judicial appointments secretary.

From 1997 to 2008, Jenkins was a judge on the U.S. District Court for the Northern District of California. President Bill Clinton (D) nominated Jenkins on July 24, 1997, to a seat vacated by Eugene Lynch. The U.S. Senate confirmed Jenkins on November 9, 1997, and he received commission on November 12. Jenkins served on the Northern District of California until his resignation on April 3, 2008.

Jenkins earned his A.A. from the City College of San Francisco in 1973, his B.A. from Santa Clara University (formerly the University of Santa Clara) in 1976, and his J.D. from the University of San Francisco School of Law in 1980.

A press release from Gov. Newsom’s office said Jenkins “would be the first openly gay California Supreme Court justice and only the third African American man ever to serve on the state’s highest court. It has been 29 years since an African American man has served on the California Supreme Court.”

The California Supreme Court is the state’s court of last resort. As of October 2020, four judges on the court were appointed by Democratic governors and two judges were appointed by Republican governors.

In 2020, there have been 21 supreme court vacancies in 16 of the 29 states where replacement justices are appointed instead of elected. One vacancy occurred when a chief justice died, and 20 vacancies were caused by retirements.

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September 2020 breakdown of state legislative party membership: 52.0% Republicans, 46.8% Democrats

According to Ballotpedia’s September partisan count of the 7,383 state legislators across the United States, 52.01% of all state legislators are Republicans and 46.77% are Democrats.

Ballotpedia tallies the partisan balance of state legislatures at the end of every month. This refers to which political party holds the majority of seats in each chamber. Republicans hold a majority in 59 chambers and Democrats hold a majority in 39 chambers. Alaska’s chamber is the only one to have a power-sharing agreement between the two parties.

Nationally, the state legislatures include 1,972 state senators and 5,411 state representatives. Republicans hold 1,081 state Senate seats—remaining the same since August — and 2,759 state House seats — up one from last month. Democrats hold 3,453 of the 7,383 state legislative seats—874 state Senate seats (down one seat) and 2,579 state House seats (the same as last month). Independent or third-party legislators hold 34 seats, of which 30 are state House seats and four state Senate seats. There are 56 vacant seats.

In the September prior to the 2016 general election, Democrats held 821 state Senate seats (53 fewer than today) and 2,334 state House seats (a decrease of 245), while Republicans held 1,087 state Senate seats (an additional six when compared to today) and 3,017 state House seats (an increase of 258).

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Montana voters to decide five ballot measures related to firearms, marijuana, and the initiative process in November

Montana voters will decide five statewide ballot measures on November 3 concerning firearms, marijuana, and the ballot initiative process.

The two citizen initiatives on the ballot—CI-118 and I-190—were sponsored by New Approach Montana and are designed to legalize recreational marijuana in the state. CI-118 would amend the Montana Constitution to authorize the legislature or a citizen initiative to set a legal age for marijuana purchase, use, and possession. I-190 would enact a law that would legalize the possession and use of marijuana for adults over the age of 21, impose a 20% tax on marijuana sales, require the Department of Revenue to develop rules to regulate marijuana businesses, and allow for the resentencing or expungement of marijuana-related crimes.

The tax revenue generated would be allocated as follows:

  1. 49.5% to accounts for wildlife, parks, and recreation
  2. 10.5% to the state’s general fund
  3. 10% to an account for drug treatment
  4. 10% to local authorities to enforce the provisions of the law
  5. 10% to an account for Montana veterans
  6. 10% to an account to fund wage increases for healthcare workers

Pepper Peterson, a spokesperson for New Approach Montana, said, “Our research has always shown that a majority of Montanans support legalization, and now voters will have the opportunity to enact that policy, which will create jobs and generate new revenue for our state. It also means that law enforcement will stop wasting time and resources arresting adults for personal marijuana possession, and instead focus on real crime.”

According to the latest campaign finance data filed on September 30, New Approach Montana reported receiving $6.95 million in contributions, including $4.7 million from the North Fund (a D.C. based nonprofit) and $1.9 million from the national New Approach PAC.

There is one committee registered in opposition to the initiatives—Wrong for Montana. The campaign reported receiving over $78,000 in contributions. Steve Zabawa, the treasurer of the Wrong for Montana campaign, said, “All you have to do is go to Colorado for a test site. They’ve been up and running now for eight years, and if you look at the traffic accidents, you look at the emergency room, you look at the vagrants, you look at the activity in the black market as well as the regular market down there, it has just exploded.”

Montana voters will also vote on a legislative referral that would remove local governments’ authority to regulate the carrying of permitted concealed weapons. The ballot measure would continue to allow local governments to regulate unpermitted concealed weapons and unconcealed weapons in public occupied buildings.

LR-130 would also remove local governments’ power to regulate the possession of firearms by “convicted felons, adjudicated mental incompetents, illegal aliens, and minors.”

According to the text of the measure, it was designed “to secure the right to keep and bear arms and to prevent a patchwork of restrictions by local governments across the state.”

Montana Governor Steve Bullock (D) came out in opposition to the measure saying, “[LR-130] would end local decision-making about whether felons and the mentally ill can carry weapons in public. It would also end local decision-making about concealed weapons. Both changes are dramatic departures from Montana history. Neither is good policy. Montana law already contains strong protections that totally prohibit localities from restricting our basic right to keep and bear arms. […] I see no reason to reassign that power to decision-makers in Helena.”

Gary Marbut, president of the Montana Shooting Sports Association, said, “Bullock is effectively arguing that a felon who would disregard committing another federal felony and disregard a state law prohibiting guns in schools would be deterred from bringing guns into schools if only local governments are allowed to enact an ordinance for a local misdemeanor prohibiting that conduct. Right, as if felons spend their time first reading and then complying with local ordinances.”

Ballotpedia identified one committee—NRA Big Sky Self-Defense Committee—in support of LR-130 that raised $16,000 from the NRA Institute for Legislative Action. There is one committee—No on LR-130—that reported nearly $1 million in contributions with its largest contribution from the Montana Federation for Public Employees ($803,369.27).

The legislature also referred two constitutional amendments to the ballot—C-46 and C-47. The measures would not alter currently enforced initiative signature distribution requirements but would amend constitutional language to match the signature distribution requirements currently enforced.

A distribution requirement is a statutory or constitutional mandate requiring that petitions for a ballot measure or candidate nomination must be signed by voters from different political subdivisions in order for the ballot measure or candidate to qualify for the ballot.

For an initiated constitutional amendment in Montana, proponents must collect signatures equal to 10 percent of the qualified electors in each of two-fifths (40) of the state’s 100 legislative districts. C-47 would amend the constitutional language to match these signature distribution requirements for initiative petitions.

For an initiated state statute or a veto referendum in Montana, sponsors must collect signatures equal to 5 percent of the qualified electors in each of one-third (34) of the state’s legislative districts. C-46 would amend the constitutional language to match these requirements.

The signature distribution requirements for initiated state statutes, veto referendums, and initiated constitutional amendments were changed in the state constitution to a county-based requirement with the passage of two voter-approved constitutional amendments, C-37 and C-38, in 2002. The 2002 county-based requirements were later ruled unconstitutional. Based on a ruling from Attorney General Mike McGrath, the distribution requirements in the constitution prior to 2002 were re-enforced. The invalidated language, however, remained in the state constitution.

The deadline to register to vote is October 26. Late registration, which is conducted at county election offices, begins on October 27 and continues through election day. Polls will be open from 7:00 am to 8:00 pm on election day. Mail-in ballots must be received by 8:00 pm on election day.

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One Alaska Supreme Court justice seeks retention in November

Alaska Supreme Court Justice Susan Carney is seeking retention on November 3, 2020. She was appointed by Gov. Bill Walker (I) in 2016.

Currently, four of the justices on the court were appointed by a Republican governor while one was appointed by an independent governor.

The governor appoints the five justices of the supreme court through a hybrid nominating commission where neither the governor nor the Alaska State Bar Association has majority control over the judicial nominating commission. The Alaska Judicial Council is made up of seven members: three lawyers (appointed by the board of governors of the Alaska Bar Association), three non-lawyer members (appointed by the governor and confirmed by a majority of the legislature in joint session), and is chaired by the chief justice of the supreme court.

New justices must face a retention election during the next general election after they serve at least three years on the bench. Justices then stand for retention every ten years with a mandatory retirement age of 70. Since 2008, justices facing retention elections have won 98% of the time. In Alaska, there has not been a single justice that lost retention during this same time frame.

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What statewide ballot measures will Florida voters decide on November 3?

The Florida ballot will feature six ballot measures in November. Four of them were put on the ballot through signature petition drives, and two were referred to the ballot by the state legislature.

The citizen initiatives cover topics including elections, voting, and minimum wage.

Amendment 1, sponsored by Florida Citizen Voters, would amend Florida Constitution to state that “only a citizen” of the U.S. who is 18 years old or older can vote in Florida. The Florida Constitution currently says “Every citizen of the United States who is at least eighteen years of age” can vote. Similar measures are on the 2020 ballot in Alabama and Colorado. All three measures are supported by Citizen Voters, Inc. North Dakota voters approved a similar measure in 2018.

Amendment 2 would increase the state’s minimum wage incrementally until reaching $15 per hour in September 2026. The measure is supported by Florida for a Fair Wage and is opposed by Save Our Jobs, Inc., also known as Amendment 2 Hurts You.

Amendment 3 would establish a top-two open primary system for state legislator, governor, and cabinet (attorney general, chief financial officer, and commissioner of agriculture) elections in Florida. All Voters Vote, Inc. is leading the campaign in support of Amendment 3. Opponents include the Democratic and Republican parties in Florida as well as groups such as the Florida AFL-CIO and the Florida NAACP.

Amendment 4 would require constitutional amendments to be approved by 60% of voters at two successive general elections to become effective. Currently in Florida, if 60% of voters approve an amendment at one general election, it becomes part of the constitution. Keep Our Constitution Clean sponsored the initiative. Opponents include the League of Women Voters of Florida.

The state legislature referred Amendments 5 and 6 to the November 3 ballot. Both measures concern property taxes.

Amendment 5, sponsored by Rep. Sam Killebrew (R), would extend the period during which a person may transfer “Save Our Homes” benefits to a new homestead property from two years to three years. Currently, if a person moves to a new home, they have two years to transfer their “Save Our Homes” benefit so that the new home is assessed at less than the actual market value. The amendment would increase that time period from two to three years. The Florida Revenue Estimating Conference (REC) determined that approval of the amendment would reduce local property taxes by $1.8 million beginning in the fiscal year 2021-22 and would eventually grow to a $10.2 million reduction annually.

Amendment 6, sponsored by Rep. Rick Roth (R), would allow a homestead property tax discount to be transferred to the surviving spouse of a deceased veteran. The discount would be in effect until the spouse remarries, sells, or otherwise disposes of the property. If the spouse sells the property and does not remarry, the spouse’s new primary residence may receive a homestead tax discount not exceeding the dollar amount from the most recent ad valorem tax roll. The amendment would take effect on January 1, 2021. Currently, the homestead property tax discount for veterans expires upon their death and is not extended to their spouses.

A total of 91 measures appeared on the Florida ballot between 1996 and 2018. Of the 91 measures, 75.82% of which were approved, and 24.18% were defeated. From 1996 to 2018, an average of between seven and eight measures appeared on the ballot during even-numbered years in Florida.

Illinois Gov. Pritzker and Citadel CEO Griffin are funding the campaigns surrounding the state’s graduated income tax ballot measure

Over $107 million has been raised for and against a constitutional amendment that would allow for a graduated income tax in Illinois. On November 3, voters will decide the constitutional amendment, which wouldn’t require a graduated income tax itself. Rather, the amendment would repeal the state constitution’s requirement that the state personal income tax is a flat rate. In 2019, the Illinois State Legislature passed a bill that would enact a graduated income tax with six brackets should voters approve the amendment.

Gov. J.B. Pritzker advocated for a graduated income tax on the campaign trail in 2018. Through October 2, Pritzker provided $56.50 million, or 96 percent, of the support campaign’s $59.00 million. “People like me should pay more and people like you should pay less,” said Pritzker.

Opponents of the constitutional amendment have organized several PACs, which together raised $58.69 million through October 2. Kenneth Griffin, CEO of the investment firm Citadel, contributed $46.75, or 96 percent, of the opposition campaign’s total funds. Griffin said a graduated income tax would mean “the continued exodus of families and businesses, loss of jobs and inevitably higher taxes on everyone.”

Pritzker and Griffin have each provided 96 percent of their respective side’s total campaign funds. On the support side, other top donors include the AARP ($674,445), the Omidyar Network ($500,000), and the National Education Association ($350,000). On the opposition side, other top donors include the Illinois Opportunity Project ($550,000), Duchossois Group Executive Chair Craig Duchossois ($200,000), and Petco Petroleum CEO Jay Bergman ($200,000).

Of the 128 statewide ballot measures in 2020, the Illinois constitutional amendment has the second-largest sum of contributions to its support and opposition campaign. In September, The Chicago Tribute reported that the Illinois constitutional amendment “is expected to be the most expensive ballot proposition debate in Illinois history.”

The most expensive in the country for 2020 is California Proposition 22, which would define app-based drivers as independent contractors. The combined support and opposition campaign contributions exceeded $200 million on October 2. Uber, Lyft, Instacart, Doordash, and Postmates provided $186.19 million to the campaign supporting Proposition 22. Opposing PACs received $13.91 million through October 2, with top funders including labor unions, such as the International Brotherhood of Teamsters, SEIU-UHW West, and Service Employees International Union.

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