Two Colorado Supreme Court justices seek retention in November

Colorado Supreme Court Justices Melissa Hart and Carlos Armando Samour Jr. are standing for retention election on November 3, 2020. Both justices were appointed by Gov. John Hickenlooper (D).

Currently, six of the seven justices on the court were appointed by a Democratic governor. Of those, five were appointed by Hickenlooper.

• Brian Boatright Appointed by Gov. John Hickenlooper (D) in 2011
• Nathan Coats Appointed by Gov. Bill Owens (R) in 2000
• Richard Gabriel Appointed by Gov. John Hickenlooper (D) in 2015
• Melissa Hart Appointed by Gov. John Hickenlooper (D) in 2017
• William W. Hood Appointed by Gov. John Hickenlooper (D) in 2014
• Monica Márquez Appointed by Gov. Bill Ritter (D) in 2010

• Carlos Armando Samour Jr. Appointed by Gov. John Hickenlooper (D) in 2018

The governor appoints justices to the court from a shortlist of two or three names assembled by the Colorado Judicial Nominating Convention. The convention is composed of 15 voting members. Eight are non-lawyers appointed by the governor and seven are lawyers jointly appointed by the governor, attorney general, and chief justice. No more than half the members of the committee plus one may belong to the same political party.

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

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Bedsole wins primary runoff for Alabama House district

A special election primary runoff was held on September 1 for District 49 of the Alabama House of Representatives. Russell Bedsole defeated Mimi Penhale for the Republican nomination with 51.4% of the vote. Bedsole will face Cheryl Patton (D) in the special general election on November 17, 2020.

The seat became vacant after April Weaver (R) resigned to become a regional director in the U.S. Department of Health and Human Services. Prior to her resignation, Weaver had held the seat since 2010.

Heading into the special election, Republicans have a 75-28 majority in the Alabama House of Representatives with two vacancies. Alabama 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.

As of September, 57 state legislative special elections have been scheduled for 2020 in 26 states. Between 2011 and 2019, an average of 77 special elections took place each year.

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Voters decide state legislative primaries in Massachusetts

Massachusetts held its statewide primary on September 1, 2020. There were 200 state legislative seats on the ballot, 40 in the state Senate and 160 in the state House. Candidates competed to advance to the general election on November 3, 2020.

As of September 3, several races were still too close to call. In the state House, 145 incumbents filed for re-election, and all 40 incumbents in the state Senate filed for re-election. At least two incumbents were defeated in the primary across the two chambers. In the 17th Middlesex District of the state House, Vanna Howard defeated incumbent David Nangle and Lisa Arnold in the Democratic primary. In the state Senate’s Hampden District, Adam Gomez defeated incumbent James Welch in the Democratic primary. Neither Howard nor Gomez face Republican opposition in the general election.

Massachusetts has a divided government in which no political party holds a state government trifecta. A trifecta exists when a political party holds both the governor’s office and majorities in both state legislative chambers. Although Democrats hold a majority in both chambers, Massachusetts elected Republican Gov. Charlie Baker in 2014.

The next two primaries in the 2020 election cycle are on September 8 in New Hampshire and Rhode Island.

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79.6% of incumbents faced no primary challenges this year, highest rate since 2014

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Ballotpedia’s annual state legislative competitiveness report shows that, this year, 79.6% of incumbents advanced to the general election without a primary challenge. This is a higher rate than in 2018 and 2016, which saw no contested primaries for 78.1% and 79.4% of incumbents, respectively.

States where more incumbents face primary challenges have a more competitive electoral field. In Wyoming, 51.7% of the 75 incumbents running for re-election faced primary challenges: 30 Republicans and one Democrat. In Connecticut, 3.6% of the 186 incumbents seeking re-election faced primary challenges, five Democrats and one Republican.

A closer look at the nationwide partisan breakdown shows that, since 2016, the number of Republican incumbents facing primary challenges has gradually decreased while the number of Democratic incumbents in contested primaries has increased.

Primary challenges also contribute to the overall turnover in state legislatures. If an incumbent is defeated in a primary, the seat is effectively guaranteed to a newcomer. As of Sept. 3, 2020, 127 incumbents—43 Democrats and 84 Republicans—have been defeated in contested primates. This means that 89.6% of all Democratic candidates and 81.6% of all Republican incumbents who have run in a primary won.

The pie charts below break down the number of incumbents in contested primaries by those incumbents who won their primaries versus those who lost. The chart for 2020 does not include data from those states that have not yet held primaries: New Hampshire, Delaware, and Rhode Island. Pending those results, 15.1% of incumbents who have faced primary challengers in 2020 have lost. This is higher than the incumbent loss rates of 13.8% and 12.2% in 2018 and 2016, respectively.

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Decade-high 85% of state legislative incumbents seeking re-election this year

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According to our 10th annual state legislative elections competitiveness research, a decade-high 85% of incumbents are seeking re-election this year. Comparatively, 80.4% of incumbents sought re-election in 2018 and 82.4% in 2016.

A greater number of open seats—a race where the incumbent is not seeking re-election at the time of the primary—tends to increase competitiveness. At all levels of politics, incumbents who are running for re-election defeat their challengers around 85% of the time.

The table below shows the five states with the highest and lowest rates of open seats this year.

The five states with the highest rates are five of the 15 with state legislative term limits, which prevent legislators from seeking re-election. 14 of those 15 states are holding elections this year with 211 state legislators term-limited, the lowest number since Ballotpedia began collecting data in 2010.

Looking at partisan breakdown, of the 882 open seats this year, 396 were most previously held by Democrats, 480 by Republicans, and six by third party or independent legislators, each of which represent decreases from 2018 and 2016.

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Mississippi commission selects final flag design containing a magnolia flower

At the election on November 3, 2020, Mississippi voters will be shown a colored picture of the new proposed state flag, named the In God We Trust Flag. Residents may vote either “yes” to adopt the new flag or “no” to oppose adopting the new state flag. If the new proposed flag is rejected by voters, the Commission to Redesign the Mississippi State Flag will reconvene, design another flag, and allow voters to approve or reject it at a special election in November 2021. The commission unanimously selected the final flag on September 2, 2020.

Small changes to the flag were set to be made before it is finalized, such as bolding the words IN GOD WE TRUST.

After the killing of George Floyd on May 25, 2020, the debate about the state flag resurfaced in the state government. Mississippi Governor Tate Reeves (R) tweeted on June 27, 2020, “The argument over the 1894 flag has become as divisive as the flag itself and it’s time to end it.” State Representative Robert Johnson III (D) said, “It is a symbol of terror in the Black community. It is a symbol of oppression in the Black community and it is a symbol of slavery. Everything that has been devastating to African Americans and to especially African Americans in the South, everything that has been a complete and utter disaster for us, that flag represents.” Johnson said the protests after Floyd’s death created a perfect storm that spurred the state legislature to act in removing the state flag.

Mississippi became the only state with a state flag containing the Confederate flag after Georgia had removed it from its state flag in 2001.

House Bill 1796, which was passed by the legislature and signed into law by Gov. Tate Reeves (R) on June 30, 2020, removed the official status of the state flag, which, at the time, contained the Confederate ballot cross. The bill provided for the removal of the state flag within 15 days. The bill established the Commission to Redesign the Mississippi State Flag, which was tasked with designing a new state flag and reporting the recommended design to the governor and the state legislature. The bill provided that “the new design for the Mississippi State Flag shall honor the past while embracing the promise of the future.” The Commission to Redesign the Mississippi State Flag consisted of nine members. The speaker of the house and the lieutenant governor each appointed three members. The other three members were representatives from the Mississippi Economic Council, the Mississippi Arts Commission, and the Board of Trustees of the Mississippi Department of Archives and History, which were appointed by Gov. Tate Reeves.

The public was able to submit flag designs to the Mississippi Department of Archives and History (MDAH) until August 1, 2020. Flag designs needed to adhere to North American Vexillological Association standards (be simple enough that a child could draw it from memory; use meaningful symbolism; use two or three basic colors; not use lettering or seals; and be distinctive or be related). The commission received around 3,000 flags that met the criteria. The commission narrowed the designs down across four meetings until the final design was selected on September 2, 2020.

The previous Mississippi state flag was adopted by the state legislature in 1894. The emblem on the left side of the 1894 flag included the Confederate battle cross. In 1906, Mississippi enacted a revised code of laws, and due to an oversight, the law establishing the official state flag was inadvertently repealed. Voters in Mississippi decided a state flag referendum in April 2001. The measure presented voters with two potential state flags. Voters approved Proposition A, which made the 1894 Confederate flag the official state flag.

The 2001 flag referendum came about after a lawsuit brought by the NAACP in 1993 alleging that the use of the Confederate flag in the state flag violated the plaintiff’s constitutional rights to free speech, due process, and equal protection. The Mississippi Supreme Court ruled in 2000 that the state flag’s inclusion of the Confederate Battle Flag did not violate any constitutionally protected rights. The court had also found that the state flag requirements were not codified in state law and thus Mississippi did not have an official state flag. The 2001 flag referendum was held to formally adopt a state flag and officially codify it in law.

A group called Let Mississippi Vote planned to file an initiative targeting the 2022 ballot that would ask voters to choose between four flag designs:

1. The former state flag that includes Confederate battle emblem, but with the phrase “In God We Trust” added;
2. The flag commission’s final flag, which contains a magnolia flower and the words “In God We Trust”;
3. The bicentennial flag with the state seal; and

4. The former Stennis Flag (also called the Hospitality Flag), which includes the words “In God We Trust.”

As of September 2, 2020, one initiative filing concerning the state flag was active. The measure, sponsored by Matthew Brinson, would ask voters if they want to change the flag from the 1894 flag containing the Confederate battle cross to the Hospitality Flag.

To qualify an initiative for the 2022 ballot, 106,190 valid signatures are required. Signatures for the initiative can be collected for a period of one year after petitions are approved.

Special Democratic primary for Georgia State Senate District 39 set for November 3

A new state legislative special election has been added to our list. The special election is for the District 39 seat in the Georgia State Senate. Only Democratic Party candidates may file because no Republican filed for the seat in the 2020 regular election. The incumbent, Nikema Williams (D), withdrew from the regular election after receiving her party’s nomination in the primary. The special Democratic primary is on November 3, 2020, and the primary runoff is scheduled for December 1 if no candidate wins a majority of the primary vote. The filing deadline is on September 4.

One Utah Supreme Court justice seeks retention in November

Utah Supreme Court Justice John A. Pearce is standing for retention election on November 3, 2020. Pearce was appointed by former Utah Governor Gary Herbert (R).

Herbert appointed four of the five justices currently sitting on the court. Gov. Michael Leavitt (R) appointed the other.

The governor of Utah appoints the five justices of the supreme court with the assistance of the Utah Judicial Nominating Commission. The governor has majority control over membership on the seven-member judicial nominating commission. The governor appoints six of these members, no less than two and no more than four of whom may be lawyers. Two of the lawyer members must be appointed from a list of nominees submitted by the Utah State Bar. The Utah Supreme Court Chief Justice appoints the final member of the commission, who does not vote.

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. Since 2008, justices facing retention elections have won 98% of the time. In Utah, there has not been a single justice that lost retention during this same time frame.

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Fabiana Pierre-Louis confirmed to state Supreme Court by New Jersey Senate

On August 26, 2020, Justice Walter Timpone announced that he planned to retire early from the New Jersey Supreme Court if supreme court nominee Fabiana Pierre-Louis was confirmed by the Senate before September. On August 27, 2020, the New Jersey Senate voted 39-0 to approve Pierre-Louis.

Pierre-Louis is Governor Phil Murphy’s (D) first nominee to the supreme court. Because Justice Timpone will reach the age of 70 this year, he must retire due to a provision in the state’s constitution.

In the case of a vacancy on the court, the governor is tasked with selecting a nominee who is then confirmed by the Senate Judiciary Committee, followed by a confirmation by the entire Senate.

The state of New Jersey mandates partisan balance on the court. Justice Timpone was nominated as a Democrat, so Gov. Murphy had to nominate a Democrat to the court according to state law. Justice Timpone was appointed by Gov. Chris Christie (R).

Pierre-Louis is a first generation American and her parents are Haitian immigrants. Gov. Murphy stated, “I am honored to have put her name forward, and to see someone with a different set of life experiences and perspectives on our Supreme Court, a judicial body where New Jerseyans from all walks of life turn for justice.”

After Gov. Murphy announced her nomination, Pierre-Louis stated, “Many years ago, my parents came to the United States from Haiti with not much more than the clothes on their backs and the American dream in their hearts… I think they have achieved that dream beyond measure because my life is certainly not representative of the traditional trajectory of someone who would one day be nominated to the Supreme Court of New Jersey.”

Pierre-Louis was a prosecutor in the U.S. Attorney’s Office for the District of New Jersey. She was also a law clerk for state Supreme Court Justice John Wallace Jr.

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Ballotpedia study shows that no states provide for juries to participate in agency adjudication hearings

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A Ballotpedia survey of all 50 state constitutions and administrative procedure acts (APAs) revealed that no state constitutions or APAs provide for juries to participate in agency adjudication hearings, as of August 2020. Thus, hearing officers or other agency officials preside over and decide the outcome of adjudications instead of people from the community.

Adjudication proceedings include agency determinations outside of the rulemaking process that aim to resolve disputes between either agencies and private parties or between two private parties. The adjudication process results in the issuance of an adjudicative order, which serves to settle the dispute and, in some cases, may set agency policy.

Because state administrative agencies are unlike traditional state courts, the same rules do not always apply. The absence of jury participation is a way agency adjudication differs from the traditional judicial process that state courts follow.

Understanding adjudication procedures provides insight into due process procedural rights of citizens at the state level. Procedural rights is one of the five pillars key to understanding the main areas of debate about the nature and scope of the administrative state.

To learn more about Ballotpedia’s survey related to procedural rights, see here:

Procedural rights: States that provide for juries to participate in agency adjudication hearings

Want to go further? Learn more about the five pillars of the administrative state here: Administrative state

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