Each week, we bring you a collection of the most viewed stories from The Daily Brew, condensed. Here are the top stories from the week of March 20-March 24.
Biden issues first veto of his presidency
On March 20, President Joe Biden (D) vetoed the first legislation of his presidency, sending a measure back to Congress that would have prohibited retirement account managers from using certain environmental, social, and corporate governance (ESG) factors to inform investment decisions.
Congress can override a presidential veto with a two-thirds majority vote in both chambers.
Presidents have issued 2,585 vetoes in American history, and Congress has overridden 112. President Franklin D. Roosevelt vetoed 635 bills, the most of any president. Presidents John Adams, Thomas Jefferson, John Q. Adams, William H. Harrison, Zachary Taylor, Millard Fillmore, and James A. Garfield did not issue any vetoes.
Dating back to 1981, President Ronald Reagan (R) issued the most vetoes with 87. Biden has issued the fewest, followed by President Donald Trump (R) with nine.
Litigants in Moore v. Harper submit briefs on SCOTUS’ next steps after North Carolina’s highest court re-hears case
Moore v. Harper is a Supreme Court case involving North Carolina’s redistricting process and one of the high-profile SCOTUS cases we’re covering in 2023.
The parties in the case filed supplemental briefs with the U.S. Supreme Court on March 20 at SCOTUS’ request after the North Carolina Supreme Court announced it would re-hear the case. The briefs outlined each party’s view on whether SCOTUS still had jurisdiction in light of the state court’s decision. Reuters‘ Joseph Ax wrote that “If the justices decide they no longer have jurisdiction, they could dismiss the case without issuing a ruling.”
The case, which was argued before the U.S. Supreme Court on Dec. 7, concerns the Constitution’s election clause and whether it gives state legislatures sole authority to regulate federal elections without oversight from state courts. North Carolina House Speaker Timothy Moore (R) and a group of Republican legislators brought the case before SCOTUS after the North Carolina Supreme Court ruled 4-3 in February 2022 that the congressional boundaries the Republican-controlled legislature adopted in 2021 were unconstitutional. The North Carolina Supreme court had a 4-3 Democratic majority at the time.
After overturning the original congressional district boundaries, the state supreme courtsent the case back to the trial court for further proceedings. In February 2022, the Wake County Superior Court adopted congressional districts that three court-appointed former judges had drawn. Those districts were used for the 2022 elections.
As a result of the 2022 elections, the North Carolina Supreme Court changed partisan control from a 4-3 Democratic majority to a 5-2 Republican majority. In February 2023, that court agreed to re-hear its decision overturning the district boundaries. The court re-heard oral arguments on March 14.
Jacksonville’s mayoral election advances to a runoff
Donna Deegan (D) and Daniel Davis (R) advanced from Tuesday’s election and will face each other in a runoff on May 16. With 100% of precincts reporting, Deegan received 39% of the vote, and Davis received 25%. Six other candidates, including one Democrat and three Republicans, also ran.
Incumbent Mayor Lenny Curry (R) was term-limited.
In Jacksonville, all candidates run in the general election regardless of party affiliation. If no candidate wins more than 50% of the vote, the top two vote-getters advance to a runoff.
Broken down by party, Democratic candidates received a combined 48% of the vote in Tuesday’s election, while Republican candidates received a combined 51%. Candidates not affiliated with any party received 1%.
Here’s what’s in store for you as you start your day:
Litigants in Moore v. Harper submit briefs on SCOTUS’ next steps after North Carolina’s highest court re-hears case
Jacksonville’s mayoral election advances to a runoff
Learn about this year’s state executive and state legislative races with On the Ballot, our weekly podcast
Litigants in Moore v. Harper submit briefs on SCOTUS’ next steps after North Carolina’s highest court re-hears case
First, let’s update you on Moore v. Harper, a Supreme Court case involving North Carolina’s redistricting process and one of the high-profile SCOTUS cases we’re covering in 2023.
The parties in the case filed supplemental briefs with the U.S. Supreme Court on March 20 at SCOTUS’ request after the North Carolina Supreme Court announced it would re-hear the case. The briefs outlined each party’s view on whether SCOTUS still had jurisdiction in light of the state court’s decision. Reuters’ Joseph Ax wrote that “If the justices decide they no longer have jurisdiction, they could dismiss the case without issuing a ruling.”
The case, which was argued before the U.S. Supreme Court on Dec. 7, concerns the Constitution’s election clause and whether it gives state legislatures sole authority to regulate federal elections without oversight from state courts. North Carolina House Speaker Timothy Moore (R) and a group of Republican legislators brought the case before SCOTUS after the North Carolina Supreme Court ruled 4-3 in February 2022 that the congressional boundaries the Republican-controlled legislature adopted in 2021 were unconstitutional. The North Carolina Supreme court had a 4-3 Democratic majority at the time.
After the state supreme court overturned the original congressional district boundaries, it sent the case back to the trial court for further proceedings. In February 2022, the Wake County Superior Court adopted congressional districts that three court-appointed former judges had adopted. Those districts were used for the 2022 elections.
As a result of the 2022 elections, the North Carolina Supreme Court changed partisan control from a 4-3 Democratic majority to a 5-2 Republican majority. In February 2023, that court agreed to re-hear its decision overturning the district boundaries. The court re-heard oral arguments on March 14.
SCOTUSblog Amy Howe wrote, “Lawyers involved in [in Moore v. Harper] disagreed on Monday about whether the Supreme Court has the power to reach a decision in the case.”
Here’s a look at the views different petitioners filed in their briefs:
The legislators that brought the case told the justices the Court should decide on the case. In their brief, the group said “the North Carolina Supreme Court decision to rehear [the case] had no effect on this Court’s continued jurisdiction.”
Lawyers for the group Common Cause, another challenger in the case, agreed. In their brief, the group said that “the Court should, if at all possible, decide this question now, rather than on an emergency basis during the 2024 election cycle.”
Attorneys representing the state of North Carolina wrote, “The State’s 2022 congressional elections have already taken place under the state court’s interim map, and Petitioners will suffer no prejudice from letting the ordinary appeals process play out…Although the Court has already received briefing and heard oral argument in this case…The decisions on review are nonfinal, and this Court should therefore dismiss the case for lack of jurisdiction.”
Reuters’ Ax wrote that the congressional boundaries the state supreme court overturned “would likely have secured 11 of the state’s 14 congressional seats for Republicans.” In the 2022 elections, Republicans and Democrats won seven U.S. House districts each.
Jacksonville’s mayoral election advances to a runoff
Let’s move further south and take a look at Tuesday’s general election for mayor in Jacksonville, Florida.
Donna Deegan (D) and Daniel Davis (R) advanced from Tuesday’s election and will face each other in a runoff on May 16. With 100% of precincts reporting, Deegan received 39% of the vote, and Davis received 25%. Six other candidates, including one Democrat and three Republicans, also ran.
Incumbent Mayor Lenny Curry (R) was term-limited.
In Jacksonville, all candidates run in the general election regardless of party affiliation. If no candidate wins more than 50% of the vote, the top two vote-getters advance to a runoff.
Broken down by party, Democratic candidates received a combined 48% of the vote in Tuesday’s election, while Republican candidates received a combined 51%. Candidates not affiliated with any party received 1%.
Deegan is a philanthropist and local news anchor. Ahead of Tuesday’s election, Deegan’s campaign had focused on infrastructure, public health, and housing affordability. “Folks are with us because they see the vision that we are looking out to the future, not reactive. We’re trying to bring people into things, so the next step is to continue those conversations,” Deegan said. Deegan completed Ballotpedia’s Candidate Connection survey. Click here to read her responses.
Davis, the former president and CEO of Jacksonville’s Chamber of Commerce, highlighted public safety. Speaking to supporters on Tuesday, Davis said, “Will we elect a mayor who will stand with our brave men and women in uniform to make Jacksonville safer? Will we as Jacksonvillians go down the pathway of San Francisco and New York? … Will we elect a mayor who will stand with Gov. Ron DeSantis to keep Florida free? Or will we embrace the policies of the left that punish hard-working taxpayers?”
The last time a Jacksonville mayoral election advanced to a runoff was 2015. Then-incumbent Alvin Brown (D) and Lenny Curry (R) advanced to the runoff after receiving 42.6% of 38.4% of the vote in the general election, respectively. Curry defeated Brown 51% to 49% in the runoff.
Jacksonville also held general elections for city council, supervisor of elections, property appraiser, sheriff, and tax collector. Seven city council elections and the election for property appraiser advanced to a runoff.
As we mentioned earlier this week, we’re covering 40 mayoral elections in the country’s 100 largest cities this year, with at least one election being held every month except for January and July.
The current partisan breakdown of the mayors of the 100 largest U.S. cities is 62 Democrats, 26 Republicans, three independents, and seven nonpartisans. Two mayors’ partisan affiliations are unknown. Based on 2020 population estimates, 76.1% of the population of the top 100 cities lives in cities with Democratic mayors, and 16.2% lives in cities with Republican mayors at the start of 2022.
Listen to the latest episode of On the Ballot, our weekly podcast
On the Ballot, our weekly podcast, takes a closer look at the week’s top political stories.
In this week’s episode, host Victoria Rose and Ballotpedia’s Marquee Staff Writer Doug Kronaizl take a very early look at the state executive and state legislative races that will take place later this year, including elections in New Jersey, Kentucky, and Virginia.
Episodes of On the Ballot come out Thursday afternoons, so if you’re reading this on the morning of March 23, you’ve still got time to subscribe to On the Ballot on your favorite podcast app before this week’s episode drops!
Click below to listen to older episodes and find links to where you can subscribe.
Welcome to Hall Pass, a newsletter written to keep you plugged into the conversations driving school board politics and governance.
In today’s edition, you’ll find:
On the issues: The debate over Florida’s education savings account bill
School board filing deadlines, election results, and recall certifications
In your district: reader replies on the four-day school week
Texas Education Agency takes over state’s largest school district
Extracurricular: education news from around the web
Candidate Connection survey
Email us at editor@ballotpedia.org to share reactions or story ideas!
On the issues: The debate over Florida’s education savings account bill
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.
On March 17, the Florida House of Representatives passed House Bill 1, which would expand Florida’s education savings accounts (ESAs). The bill would allow all students eligible for public school enrollment to receive up to $8,000 for education-related expenses outside the public school system. The funds can be used for curricular materials for homeschooling, tutoring services, private school tuition, and certain other education-related expenses.
Juan Martinez writes that HB1 would allow greater schooling flexibility and customization, especially for lower-income families. Marinez says the option for parents to tailor their children’s education would create more opportunities for students. Martinez also says taxpayers should fund students instead of “a one size fits all system.”
Sally Butzin writes that parents, lower-income families, and taxpayers in general should trust the government to hold public schools accountable and expand public school services and funding. Butzin says HB1 does not establish sufficient accountability around ESA spending. She also says ESAs harm public schools in favor of private schools, which Butzin says reduces equality.
“The recently introduced HB1 will expand the ability for parents to make personalized decisions for their children’s education by establishing educational savings accounts (ESAs) that would allow families to utilize their child’s share of public schooling funds to pay for customized education options. Rather than being limited by what school district one lives in, families would be able to use these funds for a variety of options that allow them to customize their children’s education in ways that best suit their unique gifts, talents, and needs. … [T]he purpose of state education policy is to best educate students, not to maintain a status quo educational system that’s outdated and doesn’t serve learners. The world has changed from when mass schooling was first instituted, and it continues to change to this day. Public education must continue to evolve along with it. Funding students, rather than a one size fits all system, will allow for the children of Florida to get an education that will best prepare them for their own unique future. … At the end of the day, the reality is that traditional model has failed to meet the needs of so many students, especially Hispanic ones.”
“Since the 19th century, American citizens have trusted in the covenant made between taxpayers and their government to use their money to benefit the welfare of the citizens, including maintaining an equitable system of free public education. Taxpayers have trusted that the government would provide oversight and accountability for the education of its youth. Now for the first time in history we see taxpayer money being diverted to individual persons through a private organization called Step Up for Students (stepupforstudents.org) with little or no transparency or accountability. We also see that voucher language has been manipulated to fool citizens. … Education “Savings” Accounts should be called Education “Spending” Accounts. An ESA is essentially a debit card for many non-vetted purchases including home schooling. … This bill fundamentally transforms our public education system, which has always been the great equalizer. Despite dwindling funds and over-regulations, public schools continue to educate most of Florida’s children. Rather than working to improve public schools, the goal is to dismantle them brick by brick.”
In your district: reader replies on the four-day school week
We recently asked readers the following question about teacher compensation:
Do you believe teacher compensation should be based on merit, seniority (which usually includes level of education), or a combination of both merit and seniority?
Thank you to all who responded. Today, we’re sharing a handful of those responses. We’ll return next month with another reader question. If you have ideas for a question you’d like to see us ask, reply to this email to let us know!
A retired school superintendent in New York wrote:
“Teachers have usually reacted viscerally to proposals for merit compensation. They will tell you they believe that such plans are subject to cronyism and favoritism. Almost as bad, they will tell you that objective measures do not capture essential aspects of teaching. What’s more, schools are communities which succeed or fail together. Any effort to consider merit should be considered on a school level.”
A school board member in New Hampshire wrote:
“I have believed for many years that merit should play a role in compensation. We introduced a modest merit pay element in our professional staff contract a few years ago in the form of a merit bonus and it created so much negative impact that it was removed from the contract when renegotiated. One teacher awarded the merit pay refused to accept it. Staff and administration could not identify a worthwhile metric. Deep discussion with staff representation revealed that our teachers value the certainty of a traditional step table with predicted income rather than introduce any uncertainty or atmosphere of competition. Finding an appropriate metric that was truly a measure of teacher performance seemed to be the greatest obstacle. I expected resistance from the staff but was surprised by the passionate opposition from our highest performing teachers, including those who had received the additional pay.”
A school board member in Iowa wrote:
“Combination of both merit and Seniority. It’s long past time to reward those that have a proven history of getting students to excel, and solely because they have tenure.”
A community member in Pennsylvania wrote:
“It should be a combination based on merit and seniority. Let’s face it, we all remember that some teachers are better at teaching than others, and it isn’t always incumbent upon one or the other. One teacher having low seniority but with a proven track record of results and ability to relate to students may be better at it than one that has been there a long time but is basically getting stale at it. On the other hand some do better and better as the years go by. There should be a way to combine both in some sort of point system. We’ve all had teachers that have been at it for a while that aren’t very good at presenting lessons in a way that keep us engaged and others that are almost fresh out of college but have a knack for keeping young people interested and have a fresh approach. There’s also the opposite where some experience make them more effective with tried and true methods. Teachers are people too, and we all learn and perform at different rates at any given point in our lives. Most businesses use this combination for decisions about advancement from my experience.”
A school board member in Colorado wrote:
“I believe teacher compensation should be based on level of education and years of experience. It is a fact that there are some teachers who always go above and beyond and those who do only the minimum. Some believe that’s a good reason to implement a merit-based system of compensation. As a retired special education teacher and now a school board member, I have yet to see a quality rubric for determining how “merit” is measured. If that could be created so that special education teachers are fairly and equally “compared” to classroom teachers (for example), I would consider the idea of merit-based pay for my school district.”
A school committee member wrote:
“I believe teacher pay should be based on seniority, continuing education, and “merit,” in that order. The trick is that “merit” is so very hard to measure, and is often subjective and thus subject to favoritism.”
A teacher’s spouse in Pennsylvania wrote:
“While merit based teacher compensation sounds like a smart idea, it turns out that measuring merit is highly subjective. Test scores, for instance, are based on a number of factors teachers cannot control, just as much as those they can- student anxiety, home life, commitment, etc. While school administrators have rubrics for performance reviews, it has been our experience that what the rubric measures depends entirely on who is doing the evaluations. Two different administrators will give opposite feedback on the same lesson, for example. Fads play a role too- you’ll get a good score for group projects one year when its “in”, but another year they’ll say it isn’t rigorous enough. Some of these rubrics try to force all teachers into the same teaching style, rather than allowing them the flexibility to play to their personal strengths.”
A community member in California wrote:
“A combination of merit and seniority/level of education. That said, there needs to be a major overhaul so that good teachers are not penalized because their students do not perform well on standardized testing–ESPECIALLY since those results often are tied to socioeconomic reasons that are not properly calculated.”
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 the more than 13,000 districts with elected school boards.
Upcoming school board elections
In 2023, about 24,100 school board seats are up for election in 35 states. Ballotpedia is covering elections for approximately 8,750 seats in 3,211 school districts across 28 states—or about 36% of all school board elections. Read more about Ballotpedia’s coverage of school board elections here.
On April 4, Oklahoma and Wisconsin will hold school board general elections. We covered Oklahoma’s (Feb. 14) and Wisconsin’s (Feb. 21) primaries in previous editions of this newsletter. We’re covering all school board elections in both Oklahoma and Wisconsin this year.
We’re also covering elections in the following states/districts on April 4:
Texas Education Agency takes over state’s largest school district
A yearslong struggle between the Texas Education Agency (TEA) and the Houston Independent School District (HISD) came to an end last week.
On March 15, Texas Commissioner of Education Mike Morath announced in a letter he was appointing a Board of Managers to replace the Houston Independent School District’s (HISD) elected Board of Trustees. Morath cited a number of reasons for the move, including that “one of the district’s campuses received unacceptable academic accountability ratings for five consecutive years.”
Morath, whom Gov. Greg Abbott (R) appointed to oversee the Texas Education Agency in 2015, first signaled his intent to remove the HISD Board of Trustees on Nov. 6, 2019. Morath notified the district of his decision to replace the elected school board and appoint a superintendent following a TEA investigation into the board’s governance and repeatedly poor academic performance ratings at Wheatley High School. However, HISD lawyers filed a complaint against the TEA, and Travis County District Judge Catherine Mauzy issued an injunction that prohibited Morath from taking control of the district. On Jan. 13, 2023, the Texas Supreme Court ruled state law allows the TEA to take control of the district, ending the injunction.
HISD is the largest district in Texas and the eighth-largest district in the country, with an estimated student population of 200,000. There are 276 schools in the district, including Phillis Wheatley High School, the school Morath identified in his letter as having had several years of poor academic performance. In 2022, Wheatley received its first passing grade in eight years.
State takeovers of schools or districts are relatively uncommon, though many states have laws allowing for such takeovers. In a 2016 report for The Center on Reinventing Public Education (CRPE), political scientist Ashley Jochim writes that “rationales for state involvement in local public school systems have evolved over time but they have almost always been reserved for schools and districts with a consistent record of poor performance—a measure of last resort.”
Jochim’s report found that 35 states had laws permitting the state to take over districts or schools. The first time a state assumed control of a school district was in 1989, when New Jersey took over Jersey City Public Schools following years of poor student performance and increasingly dilapidated buildings. Although the state had relinquished much of its control of the district by 2008, it wasn’t until 2022 when the takeover formally ended.
New Jersey also assumed control of districts in Newark and Paterson in the early 1990s.
Other prominent examples of state takeovers include Pennsylvania’s takeover of the Philadelphia school system in 2001 and the Massachusetts Department of Education’s takeover of Lawrence Public Schools in 2011.
HISD isn’t the first district the TEA has taken over, but it is the largest. In the past 30 years, TEA has taken control of 15 other districts.
Morath said House Bill 1842, which Abbott signed into law in 2015, requires him to take over districts whose schools receive failing grades for five consecutive years. Three Republicans and two Democrats authored HB 1842, including state Rep. Harold Dutton (D), who defended the TEA’s takeover of HISD in a Houston Chronicle op-ed on March 13. Dutton wrote, “When a student fails once, there are consequences. When a district fails at least five consecutive times, there should also be consequences.”
Morath said the new Board of Managers and superintendent would not take over before June 1. The elected Board of Trustees will serve in an advisory capacity, and elections will still take place. The appointed board will serve for two years. At that time, Morath will need to announce a timeline for returning control back to the Board of Trustees or extend the state takeover for an additional two years.
The TEA is accepting applications for the Board of Managers from Houston residents through April 6.
Morath listed three conditions the district would have to meet for the state to return control to an elected board:
No school receives Ds or Fs for multiple years.
The district’s special education program complies with state and federal laws.
The board demonstrates a focus on improving student outcomes.
The takeover has fueled disagreement since Morath announced his intention to remove the elected board in 2019. Gov. Abbott, who backed Morath’s decision from the beginning, said, “There has been a longtime failure by HISD and the victims of the failure are the students.”
U.S. Rep. Sheila Jackson Lee (D), who represents Texas’ 18th Congressional District—which includes parts of Houston—and formerly served on the Houston City Council, called on the U.S. Department of Education to launch a civil rights investigation into the takeover. The ACLU of Texas tweeted: “The state takeover of HISD is not about public education — it’s about political control of a 90 percent Black and brown student body in one of the country’s most diverse cities.” The organization went on to say HISD needed more resources, not dictates from officeholders in other cities.
Reaction among the Board of Trustees has also been polarized. Board President Daniela Hernandez, who was elected in 2020, said, “I believe in the democratically elected board. I ran for this position. I think that community voice is very important for local school districts. HISD is a local school district, and we need to do everything that we can to keep it in local control.” Kendall Baker, who was elected in 2021, said, “I have full confidence that Mike Morath will do everything possible to help parents, teachers, taxpayers, and students. Exterminate the place, find the bodies, and head over back to us.”
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!
Here’s how Manzella answered the question, “What areas of public policy are you personally passionate about?”
“Communication and partnership with parents to support and empower each child to achieve to the best of their abilities is essential for each student to become a responsible, contributing member of society.”
Click here to read the rest of Manzella’s answers.
Here’s how Koval answered the question, “What areas of public policy are you personally passionate about?”
“A child’s learning is not limited to the classroom but instead their entire environment. To capitalize on a child’s formative years, there should be a strong partnership between a child’s parents/caregivers and their teacher. This ensures the two are speaking the “same language”. Opportunities for parents to check-in with teachers outside of two conferences a year are so important. An uninformed parent becomes a concerned and isolated parent that cannot effectively support their child at home. I believe for the vast majority of time, this is not due to a teacher not wanting to communicate with parents, but simply the system they’re working in doesn’t allow for effective parent follow-up. Our teachers’ workload needs to be structured in a way that provides them with an effective communication system for families. II would strive to find what can we take off of teacher’s plates so that there is an opportunity for parents and teachers to partner. This will benefit all involved. For this reason I support the Parent’s Bill of Rights.”
SCOTUS accepted one new case since our March 6 issue. SCOTUS will review the case during its 2023-2024 term. To date, the court has agreed to hear three cases for its 2023-2024 term. Click the links below to learn more about this case:
Choice of law is when there is a conflict between the laws of different jurisdictions and a decision must be made concerning which laws to apply to a case or contract.
Arguments
SCOTUS will hear arguments in four cases this week. Click the links below to learn more about these cases:
Click the links below to learn more about these cases:
“I. Does the Ninth Circuit Opinion, allowing the Nation to proceed with a claim to enjoin the Secretary to develop a plan to meet the Nation’s water needs and manage the mainstream of the LBCR so as not to interfere with that plan, infringe upon this Court’s retained and exclusive jurisdiction over the allocation of water from the LBCR mainstream in Arizona v. California?
“II. Can the Nation state a cognizable claim for breach of trust consistent with this Court’s holding in Jicarilla based solely on unquantified implied rights to water under the Winters Doctrine?”
The questions presented: “Whether the court of appeals erred in applying the Lanham Act extraterritorially to petitioners’ foreign sales, including purely foreign sales that never reached the United States or confused U.S. consumers.”
The questions presented: “Does a non-frivolous appeal of the denial of a motion to compel arbitration oust a district court’s jurisdiction to proceed with litigation pending appeal, as the Third, Fourth, Seventh, Tenth, Eleventh and D.C. Circuits have held, or does the district court retain discretion to proceed with litigation while the appeal is pending, as the Second, Fifth, and Ninth Circuits have held?”
“1. Whether humorous use of another’s trademark as one’s own on a commercial product is subject to the Lanham Act’s traditional likelihood-of-confusion analysis, or instead receives heightened First Amendment protection from trademark-infringement claims.
“2. Whether humorous use of another’s mark as one’s own on a commercial product is “noncommercial” under 15 U.S.C. § 1125(c)(3)(C), thus barring as a matter of law a claim of dilution by tarnishment under the Trademark Dilution Revision Act.”
Opinions
SCOTUS has not issued any opinions since our previous edition. The court has issued rulings in seven cases so far this term
Between the 2007 and 2021 terms, SCOTUS issued opinions in 1,128 cases, averaging 75 opinions per year. During that period, the court reversed a lower court decision 805 times (71.4 percent) and affirmed a lower court decision 315 times (27.9 percent).
Upcoming SCOTUS dates
Here are the court’s upcoming dates of interest:
March 20, 2023: SCOTUS will hear arguments in one case.
March 21, 2023: SCOTUS will hear arguments in two cases.
March 22, 2023: SCOTUS will hear arguments in one case.
March 24, 2023: SCOTUS will conference. A conference is a private meeting of the justices.
Federal court action
Nominations
President Joe Biden has announced no new Article III nominees since our March 7 edition.
The president has announced 154 Article III judicial nominations since taking office on Jan. 20, 2021. For more information on the president’s judicial nominees, click here.
The federal judiciary currently has 76 vacancies, 74 of which are for lifetime Article III judgeships. As of publication, there are 32 pending nominations.
According to the Administrative Office of U.S. Courts, there are 25 upcoming vacancies in the federal judiciary, where judges have announced their intention to leave active judicial status.
For more information on judicial vacancies during President Biden’s term, click here.
Do you love judicial nomination, confirmation, and vacancy information? We figured you might. Our monthly Federal Vacancy Count monitors all the faces and places moving in, moving out, and moving on in the federal judiciary. Click here for our most current count.
Need a daily fix of judicial nomination, confirmation, and vacancy information? Click here for continuing updates on the status of all federal judicial nominees.
Or, keep an eye on our list for updates on federal judicial nominations.
Correction: In our March 7 edition of Robe & Gavel, there was an error in our Grants section. We stated, “SCOTUS accepted two new cases since the Feb. 27 edition. To date, the court has agreed to hear 62 cases for the 2022-2023 term. SCOTUS dismissed one case after it was accepted. Three cases have yet to be scheduled for arguments.”
The two new cases will be argued during the 2023-2024 term. To date, the court has agreed to hear 60 cases for its 2022-2023 term. One case was dismissed after it was accepted. The court has scheduled 59 of the cases for argument. One case has not been scheduled. We regret the error.
Looking ahead
We’ll be back on March 27 with a new edition of Robe & Gavel. Until then, gaveling out!
Contributions
Myj Saintyl compiled and edited this newsletter, with contributions from Sam Post.
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 landscape of judicial and legislative challenges to the Environmental Protection Agency’s (EPA) regulatory authority under the Clean Water Act (CWA); oral argument before the United States Supreme Court on the Biden administration’s proposed student loan cancellation plan; and President Biden’s veto of a Congressional Review Act (CRA) resolution aiming to nullify the U.S. Department of Labor’s rule allowing retirement plans to consider certain environmental, social, and corporate governance (ESG) factors in investment-related decisions.
At the state level, we take a look at a proposal in the Idaho State Legislature aiming to modify the legislative approval process for state administrative rules as well as activity in Alabama and Ohio seeking to reduce state administrative regulations.
We also highlight new scholarship from law professor Allison M. Whelan on what Whelan refers to as executive interference in scientific agency decisionmaking. We wrap up with our Regulatory Tally, which features information about the 167 proposed rules and 227 final rules added to the Federal Register in February and OIRA’s regulatory review activity.
In Washington
Judicial, legislative challenges seek to limit federal water regulation
What’s the story?
The Biden administration earlier this year finalized an updated version of the Waters of the United States (WOTUS) rule, effective March 30, 2023, which spurred new legal and legislative challenges to the scope of the Environmental Protection Agency’s (EPA) regulatory authority under the Clean Water Act (CWA). The challenges argue in part that the inclusion of certain wetlands and streams in the definition of navigable waters—an interpretation of the CWA promulgated by the Obama administration, narrowed by the Trump administration, and largely reinstated by the Biden administration—exceeds the scope of the EPA’s regulatory authority.
A coalition of 24 Republican-led states on February 16 filed suit in the United States District Court for the District of North Dakota Eastern Division challenging the lawfulness of the Biden administration’s final WOTUS rule. The suit argues, among other claims, that the rule exceeds the EPA’s statutory authority under the CWA “by encompassing waters with no reasonable connection to ‘navigable waters.’”
Meanwhile, a ruling from the United States Supreme Court is forthcoming in Sackett v. EPA, a 14-year legal challenge that questions the EPA’s regulatory scope under the CWA. In Sackett, the court will decide whether to articulate a standard for recognizing the extent of the EPA’s regulatory jurisdiction over the nation’s navigable waters.
At the same time, a Congressional Review Act (CRA) resolution seeking to nullify the Biden-era WOTUS rule was pending in the United States Senate as of March 17 with support from Democratic Senator Joe Manchin (W. Va.) and 49 Republican senators. The CRA resolution, sponsored by Rep. Sam Graves (R-Mo.) and 170 Republican cosponsors, passed the House on March 9 by a 227-198 vote in which nine Democrats voted with Republican colleagues.
President Biden released a statement on March 6 indicating that he would veto the CRA resolution if it reaches his desk. Biden argued that the resolution would result in an “uncertain, fragmented, and watered-down regulatory system.”
SCOTUS hears oral argument in case challenging Biden administration’s student loan cancellation plan
What’s the story?
The United States Supreme Court on February 28, 2023, heard oral argument in Biden v. Nebraska—a case challenging the U.S. Department of Education’s authority to cancel up to $20,000 of federal student loan debt per borrower under the national emergency provisions of the Higher Education Relief Opportunities for Students Act of 2003 (HEROES Act).
Six states (Arkansas, Iowa, Kansas, Missouri, Nebraska, and South Carolina) on September 29, 2022, filed a lawsuit arguing in part that the debt-cancellation program overstepped the department’s emergency authority under the HEROES Act and that the department could not lawfully stop collecting student loan payments without congressional approval. A district court in October ruled that the states, which further argued that the plan would harm their investments and reduce their tax revenues, did not have standing to sue because they had not demonstrated sufficient harm from the program. The United States Court of Appeals for the Eighth Circuit later blocked the plan from taking effect while the case progressed through the courts.
While “the court’s liberal justices were dubious about the states’ right to sue,” according to SCOTUSblog analyst Amy Howe, “the court’s conservative justices appeared just as skeptical about whether the Biden administration could rely on the HEROES Act to adopt the loan-forgiveness program.” Howe further observed that “a majority of the justices appeared unconvinced that Congress intended to give the secretary of education the power to adopt the program,” adding that “[s]ome of the conservative justices also suggested that the loan-forgiveness program might fail under the ‘major questions doctrine.’”
Biden vetoes CRA resolution seeking to nullify ESG rule
What’s the story?
President Joe Biden (D) on March 20, 2023, vetoed a Congressional Review Act (CRA) resolution passed by Congress that aimed to nullify a rule from the U.S. Department of Labor (DOL) allowing retirement plans to consider certain environmental, social, and corporate governance (ESG) factors in investment-related decisions.
The U.S. House of Representatives voted 216-204 on February 28 to pass the resolution, with Democratic Representative Jared Golden (Maine) joining Republican colleagues. The U.S. Senate passed the resolution on March 1 by a 50-46 vote. Democratic Senators Joe Manchin (W. Va.) and Jon Tester (Mont.) joined Republican senators in supporting the measure.
Manchin described the rule as “another example of how our administration prioritizes a liberal policy agenda over protecting and growing the retirement accounts of 150 million Americans,” according to The Hill.
Nullification of the ESG rule would have resulted in the DOL reverting to a Trump-era regulation requiring that retirement plans only consider pecuniary factors with a material effect on investment risk or return. Biden argued in his veto statement, “There is extensive evidence showing that environmental, social, and governance factors can have a material impact on markets, industries, and businesses. But the Republican-led resolution would force retirement managers to ignore these relevant risk factors” and “would prevent retirement plan fiduciaries from taking into account factors, such as the physical risks of climate change and poor corporate governance, that could affect investment returns.”
Idaho lawmakers consider changes to legislative approval of agency rules
What’s the story?
Idaho state lawmakers are considering legislation that would require both chambers of the Idaho State Legislature to approve pending administrative rules before they can take effect.
Idaho law requires the state legislature to reauthorize all of the state’s administrative rules each year. A vote by one chamber of the state legislature is required to either approve or reject a pending administrative rule (except for rules carrying fees, which must be rejected by both chambers). If one chamber approves while the other chamber rejects a rule, the rule nonetheless becomes effective—a framework that has contributed to tension in the past between the state House and state Senate, according to the Idaho Capital Sun. House Bill 206 instead proposes requiring both chambers of the state legislature to approve pending administrative rules.
“This is a fundamental change,” said state Rep. Vito Barbieri (R), the bill’s floor sponsor, during a meeting of the House State Affairs Committee. “As you may know, one house approving a rule and another house rejecting a rule—unless it’s a fee rule—that rule has become effective.”
The House passed the bill by a 59-11 vote on March 1, 2023. The bill was pending in the state Senate as of March 17.
Alabama Governor Kay Ivey (R) on March 8, 2023, signed Executive Order 735, which puts a two-year freeze on state agency rulemaking, with certain exceptions. The order also requires each state agency during the two-year period to create an inventory of all rules and rescind any regulatory restrictions on citizens and businesses deemed discretionary. During her State of the State address on March 7, Ivey put forth a goal of reducing the number of regulatory restrictions in the state by 25%.
“In many cases, government regulations that were necessary a decade ago have outlived their usefulness, and it’s time for that to change,” said Ivey in a statement.
Ohio Governor Mike DeWine (R) included a similar proposal earlier this year as part of his proposed budget plan. Under DeWine’s proposal, state agencies would eliminate one-third of the Ohio Administrative Code by rescinding “duplicative provisions, outdated sections, and unnecessary requirements,” according to The Statehouse News Bureau. The proposal also seeks to remove federal regulatory language from the state code in an effort to help small businesses better identify the differences between state and federal requirements.
Examining scientific agency decisionmaking and the executive branch
New scholarship from law professor Allison M. Whelan in the Vanderbilt Law Review proposes a conceptual framework to address what Whelan refers to as executive branch interference in the scientific decisionmaking of administrative agencies:
“The scientific credibility of the administrative state is under siege in the United States, risking distressful public health harms and even deaths. This Article addresses one component of this attack—executive interference in agency scientific decisionmaking. It offers a new conceptual framework, ‘internal agency capture,’ and policy prescription for addressing excessive overreach and interference by the executive branch in the scientific decisionmaking of federal agencies. The Article’s critiques and analysis toggle a timeline that reflects recent history and that urges forward-thinking approaches to respond to executive overreach in agency scientific decisionmaking. Taking the Trump Administration and other presidencies as test cases, it scrutinizes who should control, or alternatively advance or limit, an agency’s scientific decisions, which are distinct from its policymaking decisions. With its ‘internal agency capture’ framework and the COVID-19 pandemic as its backdrop, the Article illustrates the phenomenon of excessive executive overreach at work in the scientific decisionmaking of the U.S. Food and Drug Administration (‘FDA’), glaringly reflected in the Agency’s decisions on reproductive medicines and protocols to respond to the pandemic. This Article demonstrates that covert internal capture can mislead the public, pose serious risks to individual and public health, undermine the arm’s-length neutrality and objectivity of agencies, and result in lasting consequences for agency legitimacy and reputation.”
Want to go deeper?
Click here to read the full text of “Executive Capture of Agency Decisionmaking” by Allison M. Whelan
Each week, we bring you a collection of the most viewed stories from The Daily Brew, condensed. Here are the top stories from the week of March 13-March 17.
More than 24,000 school board seats up for election in 2023
Nine-thousand school districts across 35 states (69% of the nation’s 13,500 public school districts, governed by 83,000 school board members) are holding regular school board elections in 2023.
Approximately 24,100 school board seats are up for regular election in 2023 in these districts, representing 36% of the 66,831 total school board seats in those 35 states.
Ballotpedia’s school board coverage in 2023 will expand to cover 8,750 school board seats in 3,211 school districts across 28 states. This includes comprehensive coverage in these 10 states: Colorado, Kansas, Minnesota, Ohio, Oklahoma, Pennsylvania, South Dakota, Virginia, Washington and Wisconsin.
Eight states—Kentucky, Louisiana, Mississippi, New Jersey, Pennsylvania, Virginia, Wisconsin, and Washington—are holding statewide elections this year.
Nationwide, 46 states permit some form of no-excuse early voting. Of the eight states holding statewide elections this year, all but Mississippi allow no-excuse early voting in some form. (Mississippi does allow voters to cast absentee/mail-in ballots early, but only under certain circumstances.)
Virginia has the longest statutory early voting period this year at 44 days. But some voters in Pennsylvania might have a similar or longer early voting period.
Pennsylvania doesn’t have a statewide, statutory early voting period. Instead, each county sets its own rules, and voters should check their county’s website for specifics. But early voting is usually available for four to six weeks, typically starting once ballots are finalized and available.
Kentucky’s early voting period lasts three days for its primary and general elections. New Jersey also has a three-day window, but for the primary only. Voters there have nine days of early voting before the general election.
Special general election for Wisconsin state Senate District 8 will determine if Republicans regain supermajority
Jodi Habush Sinykin (D) and Daniel Knodl (R) are running in a special election for Wisconsin State Senate District 8 on April 4. The results will determine if Republicans regain the supermajority in the chamber they acquired following the Nov. 8, 2022, elections.
Alberta Darling (R) represented the district since she was elected in 1992. Her Dec. 1, 2022, retirement reduced Senate Republicans’ 22-member supermajority to a 21-member majority.
A party with a supermajority would have the votes necessary to suspend Senate rules, which would speed up the legislative process, and hold impeachment trials of state officials.
Here’s what’s in store for you as you start your day:
Trifecta status of four states could change this year
New Orleans mayor challenges lowered signature requirement in recall effort
#FridayTrivia: Which state has the longest statutory early voting period this year?
Trifecta status of four states could change this year
Five states are holding gubernatorial or state legislative elections (or both!) this year: Kentucky, Louisiana, Mississippi, New Jersey, and Virginia.
Heading into the election:
New Jersey is one of 17 states with a Democratic trifecta;
Mississippi is one of 22 states with a Republican trifecta; and,
Kentucky, Louisiana, and Virginia are three of 11 states with divided governments.
A state government trifecta exists when one party controls the governorship and both chambers of the legislature.
The trifecta statuses in Kentucky, Louisiana, New Jersey, and Virginia are most susceptible to change, based on our sixth annual analysis of trifecta vulnerability.
We base our assessment of legislative elections on the absolute number of seats in a chamber, and the proportion of that total one party would need to change control. For gubernatorial elections, we base our trifecta vulnerability analysis on race forecasts from the Cook Political Report, Sabato’s Crystal Ball, and Inside Elections.
New Jersey
We rate New Jersey’s Democratic trifecta moderately vulnerable. The governorship isn’t up for election until 2025, but all seats in both legislative chambers are on the ballot this year.
Democrats currently hold a 25-15 majority in the Senate and a 46-34 majority in the General Assembly. If Republicans gain five Senate seats (12.5% of the chamber) or six in the General Assembly (7.5%), it would create a divided government in the state.
Democrats will maintain their trifecta if they lose no more than four Senate seats and five in the General Assembly.
Republicans had a net gain of eight seats—two in the Senate and six in the General Assembly—in 2021. Democrats have controlled both legislative chambers since 2004.
Kentucky
We rate Kentucky as having a slight possibility of creating a Republican trifecta. Republicans hold majorities in both legislative chambers, neither of which is up for election this year.
But Gov. Andy Beshear (D) is running for re-election in a race election forecasters rate as Lean Democratic. Beshear was first elected in 2019, defeating then-Gov. Matt Bevin (R) 49.2 to 48.8%.
Louisiana
We rate Louisiana as having a moderate possibility of creating a Republican trifecta. All 144 state legislative seats are up for elections, with Republicans holding a 27-12 majority in the Senate and a 69-33-3 majority in the House.
Louisiana is also holding its first open gubernatorial race since 2015. Gov. John Bel Edwards (D) is term-limited, and election forecasters rate the contest to replace him as Lean Republican. Bel Edwards was most recently re-elected in 2019, defeating Eddie Rispone (R) 51.3 to 48.7%.
Virginia
We also rate Virginia as having a moderate possibility of creating a Republican trifecta. Republicans currently control the governorship—which isn’t up for election this year—and hold a 52-48 majority in the state House. Democrats hold a 22-18 majority in the Senate.
If Republicans retain their House majority, they would need two seats in the Senate (5.0% of the chamber) to create a Republican trifecta.
Democrats would need to either retain their Senate majority, win a House majority (two seats, or 2.0%), or both, for the state to remain under a divided government.
Mississippi
We rate Mississippi’s Republican trifecta as not vulnerable. The governor’s race is rated Likely Republican. Republicans hold a 36-15-1 majority in the Senate and a 77-42-3 House majority.
Six states’ trifecta statuses change in 2022. In Maryland, Massachusetts, Michigan, and Minnesota, divided governments became Democratic trifectas. In Nevada, a Democratic trifecta became a divided government. And in Arizona, a Republican trifecta became a divided government.
Between 2010 and 2022, 79 state government trifectas were broken or gained.
New Orleans mayor challenges lowered signature requirement in recall effort
On March 14, New Orleans Mayor LaToya Cantrell (D) filed two lawsuits challenging a consent judgment that Louisiana Secretary of State Kyle Ardoin (R) and the organizers of a recall effort against her announced on March 1.
The consent judgment revised the number of registered voters in Orleans Parish from 249,876 to 224,876 for the recall effort, which, in turn, lowered the signature requirement from 49,975 to 44,975.
The consent judgment is a retroactive change. Recall organizers announced they had submitted more than 49,000 signatures before the Feb. 22 deadline. Orleans Parish Registrar of Voters Sandra Wilson has until March 22 to verify the signatures.
In the first lawsuit, Cantrell’s attorney argued Ardoin lacked the authority to retroactively lower the signature threshold for a recall petition that had already been submitted.
The lawsuit also alleges that Orleans Parish Civil District Court Judge Jennifer Medley, who approved the consent judgment, had a vested interest in the outcome of the litigation based on reports that Medley signed the recall petition.
Cantrell also petitioned the 19th Judicial District Court in East Baton Rouge Parish to direct Ardoin to show the authority he used to negotiate the consent judgment.
Since 2010, Ballotpedia has tracked 44 recall efforts against mayors of the country’s 100 most populous cities, including Cantrell’s. Forty-one recall efforts failed to make the ballot.
Cantrell’s is one of the remaining three recalls on that list. One, in Omaha, went to a vote in 2011, where Mayor Jim Suttle retained his position with 51% of the vote. The third, in 2013, ended because San Diego Mayor Bob Filner resigned.
Thirty-nine states allow recalls of public officials at the local level. This includes 92 of the country’s 100 most populous cities.
#FridayTrivia: How long is the average early voting period this year?
In Tuesday’s Brew, we updated you on this year’s early voting periods in the eight states holding statewide elections. Six of those eight states have a statewide, no-excuse early voting period, ranging from three days to 44, where any voter can cast a ballot before the election in person.
In those six states, how long is the average early voting period this year?
As of March 12, members of the New Mexico State Legislature, which includes the New Mexico House of Representatives and the New Mexico State Senate, have passed one bill related to election administration since the beginning of the year. The bill is:
NM HB4: Voting Rights Protections, No sponsors listed.
Deletes a provision that a polling place on Indian lands will not be eliminated or consolidated with other polling stations without written agreement.
Adds automatic voter registration as an option for voters, through other state agencies, as designated by the secretary of state, and outlines administrative requirements for automatic voter registration.
Prohibits voter data being transferred, [copied], or shared to anyone outside the requesting agency or to the general public.
Allows for same day voter registration and outlines related administrative procedures.
Prohibits a voter changing party affiliation when registering to vote, or updating an existing voter registration, immediately before voting.
Governor Michelle Lujan Grisham (D) has not yet signed the bill.
From March 6-12, legislators passed four bills related to election administration nationally. As of March 12, South Dakota legislators have passed the most bills this year with 16, while legislators in 40 states have passed none. Wyoming Gov. Mark Gordon (R) has signed the most bills with three enacted, while governors in 43 states have signed none.
The New Mexico State Legislature is scheduled to be in session from Jan. 17 to March 18 this year. In 2022, New Mexico legislators passed one election-related bill in the state Senate. The bill was not enacted into law. New Mexico is a Democratic trifecta, meaning Democrats control the governorship and both chambers of the state legislature.
Here’s what’s in store for you as you start your day:
A look at this year’s early voting periods
Four incumbents defeated in primaries for St. Louis’ downsized Board of Aldermen
On the Ballot talks Chicago with Politico’s Shia Kapos
A look at this year’s early voting periods
Eight states—Kentucky, Louisiana, Mississippi, New Jersey, Pennsylvania, Virginia, Wisconsin, and Washington—are holding statewide elections this year.
Today, let’s look at when early voting begins in those states.
When we talk about early voting, we usually refer to no-excuse early voting, meaning any voter—during a specific period—can cast a ballot before Election Day. Unlike absentee/mail-in voting, no-excuse early voting is typically done in person, though we count states where voters can cast absentee ballots in person without an excuse.
Nationwide, 46 states permit some form of no-excuse early voting. This includes the eight states—like Washington—where elections are conducted entirely by mail. Early voting typically involves receiving a ballot in the mail and dropping it off in person in those states.
This list has grown since the coronavirus pandemic, before which 44 states allowed no-excuse early voting. Virginia instituted the process in 2020, and Delaware is the most recent adopter, with last year’s elections its first to include no-excuse early voting.
Of the eight states holding statewide elections this year, all but Mississippi allow no-excuse early voting in some form. Mississippi does allow voters to cast absentee/mail-in ballots early, but only under certain circumstances.
Virginia has the longest statutory period this year at 44 days. But some voters in Pennsylvania might have a similar or longer early voting period.
Pennsylvania doesn’t have a statewide, statutory early voting period. Instead, each county sets its own rules, and voters should check their county’s website for specifics. But early voting is usually available for four to six weeks, typically starting once ballots are finalized and available.
Kentucky’s early voting period lasts three days for its primary and general elections. New Jersey also has a three-day window, but for the primary only. Voters there have nine days of early voting before the general election.
The table below shows each state and its various early voting start and end dates. While Mississippi does not allow no-excuse early voting, its election dates—including its primary and general runoffs—are included here along with early voting dates for voters who qualify.
Four incumbents defeated in primaries for St. Louis’ downsized Board of Aldermen
St. Louis held nonpartisan primaries for its Board of Alderman on March 7. All 14 seats and the board president were up for election.
These primaries were the first to take place under a new ward system that reduced the number of seats on the board from 28 to 14. This change was a decade in the making. Voters approved a charter amendment in 2012 requiring the size reduction, and in 2021, the board enacted a new 14-ward map.
Board members typically serve staggered four-year terms, but because of the charter change, every member had to stand for re-election this year. Winners in odd-numbered wards will serve initial two-year terms. Those in even-numbered wards and the board president will serve a regular four-year term.
Eighteen incumbents, including the board president, ran for re-election. Fourteen advanced to the April 4 general election, and four lost in the primaries.
At least one incumbent was guaranteed to lose: in Ward 13, all three candidates—Pamela Boyd, Lisa Middlebrook, and Norma Walker—were incumbents, but only two could advance. Boyd and Walker advanced, defeating Middlebrook.
Incumbents Brandon Frazier Bosley and James Page lost to two challengers—Rasheen Aldridge and Ebony Washington—in Ward 14. Board President Megan Green endorsed Aldridge, a state representative. The St. Louis Post-Dispatch’s Austin Huguelet wrote, “[Green] sees … as the most reliably progressive vote in the race.”
The closest race was Ward 9, where incumbents Michael Gras and Tina Pihl faced challenger Michael Browning. Browning placed first, but initial vote totals showed Gras and Pihl tied in second place with 868 votes each. Pihl ultimately defeated Gras by eight votes after officials counted provisional ballots.
In 2020, voters approved Proposition D, ending the city’s partisan primaries and adopting a nonpartisan approval voting system. Under this system, candidates appear on the same primary ballot without party labels. Voters can select as many candidates as they want, and the top-two vote-getters advance to the general election.
Looking ahead to the April 4 general election, Wards 4 and 13 both feature incumbent v. incumbent races, meaning at least two more incumbents are guaranteed to lose.
On the Ballot talks Chicago with Politico’s Shia Kapos
On the Ballot, our weekly podcast, takes a closer look at the week’s top political stories.
In our most recent episode, host Victoria Rose unpacks Chicago’s mayoral election with Shia Kapos, the author of Politico’s Illinois Playbook. Their conversation touches on the lay of the land heading into the Feb. 28 general election and where things stand now.
Later, staff writer—and Chicago resident!—Joel Williams joins the show to dig into the details from margins to endorsements to recent polling ahead of the April 4 runoff between Paul Valas and Brandon Johnson.
Episodes of On the Ballot come out Thursday afternoons, so if you’re reading this on the morning of March 14, you’ve still got time to subscribe on your favorite podcast app before this week’s episode drops!
Click the link below to catch the latest episode and learn how to subscribe:
Here’s what’s in store for you as you start your day:
Supermajority control of Wisconsin state Senate at stake in April 4 special election
State supreme courts issued 135 opinions last week
Subscribe to the Donor Privacy and Disclosure Digest, a monthly update on the laws governing nonprofit donor disclosure
Special general election for Wisconsin state Senate District 8 will determine if Republicans regain supermajority
Republicans currently control the Wisconsin state Senate, but an upcoming special general election will determine the extent of that control.
Jodi Habush Sinykin (D) and Daniel Knodl (R) are running in a special election for Senate District 8 on April 4. The results will determine if Republicans regain the supermajority in the chamber they acquired following the Nov. 8, 2022, elections.
Alberta Darling (R) was first elected to District 8 in 1992, and she represented the district until her retirement on Dec. 1, 2022. Darling’s retirement reduced Senate Republicans’ 22-member supermajority to a 21-member majority.
A party with a supermajority would have the votes necessary to suspend Senate rules, which would speed up the legislative process, and hold impeachment trials of state officials.
During the redistricting process following the 2020 census, Wisconsin State Senate District 8 was drawn to include portions of Milwaukee, Ozaukee, Washington, and Waukesha counties. Milwaukee County voted for Barack Obama (D), Hillary Clinton (D), and Joe Biden (D) in presidential elections from 2012 to 2020, making it a Solid Democratic county. Ozaukee, Washington, and Waukesha counties voted for Mitt Romney (R) and Donald Trump (R) twice during the same period, making them Solid Republican counties. Based on voting data in presidential, U.S. Senate, and governor and state attorney general elections from 2016-2020, Dave’s Redistricting finds that District 8 has a 56.6% Republican lean.
In 2020, Darling defeated challenger Neal Plotkin (D) 54.2% to 45.6%.
The images below show the District 8 boundaries before and after redistricting. New district lines took effect Jan. 3 of this year.
Here’s a look at the candidates:
Habush Sinykin is an environmental lawyer and small business owner. Her campaign website said, “Jodi is running on the issues that actually matter to the people of the 8th Senate District: keeping good paying jobs here in Wisconsin, ensuring public safety, and protecting a woman’s right to [choose].”
Knodl is a small business owner and has served as a member of the Wisconsin State Assembly since 2009. He represents District 24. Knodl’s campaign website said, “My priority is to help keep our communities safe and thriving and make sure state government is working efficiently for the people. Thanks to commonsense budgeting and cutting government waste over the years, we’ve been able to reduce the tax burden on families and small businesses, invest in education and roads, reduce healthcare premiums, and much more.”
Habush Sinykin was unopposed in the Feb. 21 Democratic primary. Knodl defeated two other candidates—Janel Brandtjen and Van Mobley—in the Republican primary. Knodl won 57.4% of the vote.
The most recent campaign finance reports between Jan. 1 and Feb. 6 show Habush Sinykin raised $252,694 and spent $224,737. Knodl raised $63,060 and spent $5,308.
Wisconsin has a divided government, meaning Republicans control the legislature, while Tony Evers, a Democrat, is governor. In Wisconsin, a two-thirds majority in each chamber is required to override a gubernatorial veto. Republicans have a 64-35 majority in the state Assembly—not enough for a supermajority in that chamber.
Currently, there are 27 state legislatures where one party has a veto-proof majority in both chambers. In eight states, including Wisconsin, one party controls the legislature while the other party controls the governor’s office.
State supreme courts issued 135 opinions between Feb.27-March 5
Between Feb. 27 and March 5, state supreme courts issued 135 opinions. The Pennsylvania Supreme Court led the field with 39 opinions issued, followed by North Dakota with 10 and Mississippi with seven.
Those 135 opinions account for 10% of the year-to-date total of 1,361. Pennsylvania, again, leads with 374 opinions issued since Jan. 1, followed by Delaware with 74 and Texas (court of criminal appeals) with 66.
Supreme courts in most states (38) have issued fewer than 25 opinions since the start of the year, and those in Michigan and North Carolina have yet to issue any opinions so far.
Every state and the District of Columbia has at least one supreme court, known as a court of last resort. Oklahoma and Texas have two courts of last resort, one for civil cases and one for criminal proceedings. Supreme courts do not hear trials of cases. Instead, they hear appeals of decisions made in lower courts. The number of justices on each state supreme court ranges between five and nine.
Some of the state supreme court opinions issued this year include those in:
Iowa, where the court reversed a Polk County District Court’s decision to grant more bargaining rights to non-transit union engineers working for the City of Ames.
Florida, where the court, on its own motion, removed “existing language saying that: ‘Approved courses in fairness and diversity also can be used to fulfill the judicial ethics requirement.'”
Missouri, where the court reversed the Circuit Court of Stoddard County’s ruling that property deeds can be reformed if a unilateral mistake occurs.
Supreme courts in Pennsylvania, West Virginia, Texas, and Delaware regularly end the year as some of the country’s most active courts. They accounted for 39% of all opinions issued in 2021, 40% in 2022, and, to date, 43% in 2023.
There are a few reasons for Pennsylvania’s outsized number of opinions each year. In most states, concurring and dissenting opinions are filed alongside the court’s majority opinion, but in Pennsylvania, the court publishes those opinions separately. Additionally, when deciding whether a case can be appealed, the court logs these decisions as standalone, typically single-page, orders.
In 2020, we conducted a study identifying the partisan balance on every state supreme court. You can find that research here. We also identified which justices ruled together most often in our Determiners and Dissenters report found here.
Donor privacy and disclosure policy is an important yet often overlooked area of state and federal law affecting countless organizations and their donors.
Advocates of expanded donor disclosure say expanded donor disclosure provisions minimize the potential for fraud and establish public accountability. Opponents say increased disclosure violates privacy rights and can inhibit charitable activity.
Under federal law, nonprofits are generally not required to disclose to the public information about their donors. State laws, however, may require such disclosure. The topic even reached the U.S. Supreme Court in 2021, when, in a 6-3 decision, justices struck down a California law requiring nonprofits to share donor names and addresses with the state attorney general’s office.
In each issue of the Donor Privacy and Disclosure Digest, we provide news and information on key policy changes, a breakdown of state legislation, and an overview of pivotal legal decisions and case developments.
Our latest edition includes the following stories and data:
We provide an in-depth look of two bills working their way through the Missouri House of Representatives that would modify the state’s Personal Privacy Protection Act. That law prohibits government agencies from disclosing information identifying a person as a member, supporter, or donor to a nonprofit organization.
We provide a bird’s-eye view of recent state legislative actions, including how many donor privacy and disclosure laws were introduced, passed one chamber, or were enacted over the last week and since the beginning of the year.
We share links to the latest stories and research on nonprofit donor disclosure laws and policies.
Click here to read past editions, and click the link below to subscribe!
