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The State Ballot Measure Monthly: January 2019

The first 2019 edition of the State Ballot Measure Monthly covers all six of the 2019 and 2020 statewide ballot measures certified to appear on ballots so far.

Here are the highlights:

  • One 2019 statewide measure, a transportation bond issue, is certified for the ballot in Colorado.
  • Five measures in four states are certified to appear on the ballot in 2020; these measures concern renewable energy, property taxes and revenue allocation, criminal sentencing and parole, and a constitutional convention question.
  • Three of the measures certified for the 2020 election so far are citizen initiatives, two in California and one in Nevada.
  • Two measures, the Colorado 2019 bond issue and a 2020 renewable energy initiative in Nevada, were automatically put on the ballot due to outcomes of ballot measures in November 2018.
  • The most recent measure to be certified for the ballot was a 2020 constitutional amendment in Michigan concerning the use of state and local park funds.
  • Citizen initiative signature requirements increased in 13 states and decreased in five states based on 2018 elections.
  • In addition to signature requirements increasing by 35 percent in Michigan due to 2018 turnout, initiative signature petition efforts in Michigan will have to meet a new distribution requirement for signature collection approved by the legislature and signed into law on December 28, 2018.


23 candidates file for NYC Public Advocate special election

Twenty-three candidates filed to run for the February 26 nonpartisan special election for New York City Public Advocate, the city’s second-highest office. They include four members of the New York State Assembly and five former and current members of the City Council.
 
The previous public advocate, Letitia James, was elected attorney general of New York in 2018. Before James first took the office in 2013, it was held by current New York City Mayor Bill de Blasio.
 
Until the winner of the special election is sworn in, Corey Johnson is the acting public advocate. He took the position on January 1 when James was sworn in to her new position. Johnson, who also serves as the District 3 member of the New York City Council, did not file to run in the public advocate special election. 
 
The candidate list is not yet finalized. Candidates have the opportunity to file specific objections to their opponents’ petitions by January 23, 2019, with general objections due January 17, 2019. The petitions of four candidates have already been challenged. Hearings on any objections will be held on January 29.
 
The last time the office was up for election in 2017, James defeated four challengers to win re-election.


Jacksonville city council member announces mayoral challenge; other members respond

On January 11, 2019, Jacksonville City Councilwoman Anna Brosche (R) announced her campaign to challenge Mayor Lenny Curry (R) in the city’s 2019 mayoral election. She said the mayor did not do enough to address crime and that the city’s taxpayers were being hurt by what she called a lack of transparency in the mayor’s office.
 
That same day, five members of the city council released a joint statement in support of Curry. Council President Aaron Bowman, Tommy Hazouri, Sam Newby, Bill Gulliford, and Lori N. Boyer criticized Brosche for “spending months sewing [sic] division and conflict in City Council” and offered an endorsement for Curry. Curry first won election in 2015, defeating then-Mayor Alvin Brown (D).

 
There are 19 members of the city council, with a current partisan balance of 12 Republicans and seven Democrats.
 
Curry and Brosche will compete along with Jimmy Hill (R), Omega Allen (Independent), and two write-in candidates in the general election on March 19. If no candidate wins a majority in that election, a runoff election will be held on May 14. Six Florida cities rank among the largest 100 by population in the United States, and all of them are holding elections this year.
 
Jacksonville is the largest city in Florida by population and the 13th-largest in the United States. It is the second-largest city in the United States to have a Republican mayor, behind San Diego.
 
Twenty-six of the 100 largest cities by population will be holding mayoral elections in 2019. Of those, five (Chicago, Houston, Philadelphia, San Antonio, and Dallas) are among the 10 largest cities. Democrats currently hold the mayor’s office in 18 of the cities with elections this year, while Republicans and independents hold four each.


New York legislature, on first day of Democratic control since 2010, passes package to change election policies

On the first day of the 2019 legislative session, the New York State Legislature approved a seven-bill legislative package to change election policies.
 
The legislative package included two constitutional amendments. In New York, constitutional amendments require a simple majority vote of two successive state legislatures. The current 203rd New York State Legislature (2019-2020) passed the constitutional amendments, and the next 204th State Legislature (2021-2022) needs to approve them again to refer them to the ballot for voter consideration in 2021 or 2022. 

 
Together, the constitutional amendments would authorize the legislature to pass statutes for no-excuse absentee voting and same-day voter registration. The governor’s signature is not required for amendments.
 
The five statutory bills would enact the following changes:
  1. create a voter pre-registration process for 16- and 17-year olds,
  2. require the state Board of Elections to transfer a voter’s registration to wherever the voter moves within New York State,
  3. restrict campaign contributions from LLCs to $5,000 and require ownership of the LLC to be disclosed in campaign finance reports,
  4. combine the federal non-presidential primary and state primary elections to a single date in June, and
  5. establish a nine-day early-voting period, including two weekends, before general, primary, and special elections.
Gov. Andrew Cuomo (D), following the votes, tweeted that he would “sign these reforms into law…” 
 

The legislative package comes after Democrats gained trifecta control of the state government at the 2018 general election. Except for a period of Democratic control in 2009 and 2010, New York had a divided government since 1975. Before the election on November 6, 2018, Democrats controlled the state Assembly, but not the state Senate due to a coalition between Republicans and the Independent Democratic Conference. In 2018, Democrats won 40 seats in the 63-seat Senate.



Federal judge blocks Trump contraception rules

On January 13, 2019, Federal Judge Haywood Gilliam blocked Trump administration contraception rules from going into effect in Washington, D.C., and thirteen states. The plaintiff states are challenging two final rules announced by the Departments of Health and Human Services, Treasury, and Labor in November 2018. According to the agencies, those rules provide flexibility to employers with moral or religious objections to health insurance plans that cover contraception and sterilization. Under the new rules, those employers would be able to offer alternative health insurance plans without such coverage.
 
The agencies issued the rules following a process called notice-and-comment rulemaking. That process allows agencies to amend, repeal, or create administrative regulations after considering public feedback on proposed rules.
 
Judge Gilliam agreed to issue an injunction against the new rules because he found that the suing states’ finances would suffer as a result of the new rules. First, the states claimed the rules would lead women to lose employer-sponsored contraceptive coverage and turn to the state for reimbursement after purchasing contraceptives. Next, the states argued that the rate of unintended pregnancies would rise following the implementation of the new rules. They claimed that the rise in unintended pregnancies would lead to higher expenses because states pay for child delivery and newborn care for mothers who have low incomes.
 
Judge Gilliam held that the states showed that the rules posed a reasonably probable threat to their economic interests because they would have to pay for contraceptives that had been guaranteed cost-free by the Affordable Care Act (ACA). Gilliam held that granting an injunction against the rules was the only way to redress the potential harm to the states while their lawsuit makes its way through the court system. He limited the injunction to the plaintiff states and Washington, D.C., because the case involves difficult questions of law that might benefit from multiple decisions in various courts of appeals.
 
Judge Gilliam also defended his decision to issue a preliminary injunction against the contraception rules using the arbitrary-or-capricious test. That test comes from the part of the Administrative Procedure Act (APA), that instructs courts reviewing agency actions to invalidate any that they find to be arbitrary, capricious, an abuse of discretion, or otherwise not in accordance with law. The plaintiff states argued that the new rules are not in accordance with the ACA, which is one of the relevant laws that determine what rules agencies may pass regarding contraception. The parties to the case will discuss the next phase of the lawsuit at a case management conference scheduled for January 23rd.


Federal judge challenges citizenship question on census, citing Administrative Procedure Act

Judge Jesse Furman of the United States District Court for the Southern District of New York, a President Obama nominee, issued a ruling on January 15, 2019, holding that Commerce Secretary Wilbur Ross violated the Administrative Procedure Act (APA) by not properly following APA procedure when including a question regarding citizenship status in the 2020 census.
 
Plaintiffs in the case also argued that Ross violated the equal protection component of the U.S. Constitution’s Due Process Clause. Furman, however, held that the due process claims fell short because the administrative record in the case did not demonstrate discrimination as a motivating factor for Ross’ decision.
 
The case consolidated two legal challenges before the Southern District of New York: State of New York, et al. v. United States Department of Commerce, et al. and New York Immigration Coalition, et al. v. United States Department of Commerce, et al. The plaintiffs in the cases included a coalition of 18 states and the District of Columbia, fifteen cities and counties, the United States Conference of Mayors, and a group of advocacy organizations.
 
Following the ruling, the U.S. Department of Justice (DOJ) stated that is was disappointed in the decision and was reviewing the case. “Our government is legally entitled to include a citizenship question on the census and people in the United States have a legal obligation to answer,” said DOJ spokeswoman Kelly Laco. “Reinstating the citizenship question ultimately protects the right to vote and helps ensure free and fair elections for all Americans.”


U.S. Supreme Court will not decide constitutionality of Ariz. ballot measure denying bail to those charged with sexual conduct with a minor

On January 14, 2019, the U.S. Supreme Court denied a request from Arizona Attorney General Mark Brnovich (R) to decide whether a provision of Proposition 103, approved in 2002, violated the U.S. Constitution.
 
Proposition 103, a constitutional amendment, received 80 percent of the vote in 2002. The ballot measure was designed to prevent courts from granting bail for certain sexual crimes with minors under 15 years of age, including sexual assault, sexual molestation, and sexual conduct.
 
In 2017, the Arizona Supreme Court, in a 4-3 divided opinion, ruled that the provision denying bail to suspects charged with sexual conduct with a minor was unconstitutional. Bail, according to the court, could not be denied for those charged with sexual conduct with a minor without demonstrating that the suspect posed a risk to the victims or society. The provisions denying bail to suspects charged with sexual assault or sexual molestation were not affected.


2019 Alaska House session gaveled in without a majority in place

The Alaska House did not have a 21-member majority to organize the chamber when the 2019 legislative session began Tuesday. Republicans won 23 of 40 seats in the 2018 elections, but four members—David Eastman (R), Gary Knopp (R), Gabrielle LeDoux (R), and Louise Stutes (R)—did not agree to caucus with the GOP, leaving the chamber without official leadership or the ability to conduct legislative business.
 
Eastman said he would likely join Republicans but may want a more conservative leader than current caucus leader David Talerico (R). Knopp left the Republican caucus in mid-December, saying that a 21-member House majority would be unstable and that he wanted to form a larger bipartisan group to run the House. LeDoux and Stutes caucused with a Democratic-led majority coalition from 2017 to 2018 and have expressed their desire to join another bipartisan coalition in 2019.
 
Without a majority in the chamber, Lieutenant Gov. Kevin Meyer (R) presided over the chamber and swore-in legislators (one of his few formal powers as a member of the executive branch). He was only able to swear-in 39 of the 40 legislators because Democrat Chris Tuck raised a point of order over Sharon Jackson (R) joining the House. Jackson was appointed to her seat by Gov. Mike Dunleavy (R) in December to replace Rep.-elect Nancy Dahlstrom (R). Dunleavy appointed Dahlstrom as commissioner of the Department of Corrections earlier in the month. Tuck argued in his point of order that, as a member of the executive branch, Meyer is not permitted by the state constitution to receive the governor’s appointment notice.
 
Because no party controls the House, Alaska’s trifecta status is unknown. If Republicans organize a majority, the state will become a Republican trifecta. Otherwise, it will remain under divided government. There are currently 22 Republican trifectas, 14 Democratic trifectas, and 13 states under divided government.


Florida Gov. DeSantis appoints second supreme court justice

Florida Gov. Ron DeSantis (R) appointed Robert J. Luck as an associate justice of the Florida Supreme Court. DeSantis announced the appointment on Monday, January 14, effective immediately. Luck is DeSantis’ second supreme court appointee to the seven-member court, after the governor appointed Barbara Lagoa on January 9.
 
DeSantis entered office with three state supreme court seats to fill, as Justices Barbara Pariente, Fred Lewis, and Peggy Quince all retired after reaching the mandatory retirement age. Pariente and Lewis were appointed by Gov. Lawton Chiles (D) in 1997 and 1998, respectively. Quince’s appointment was a joint decision between Chiles and incoming Gov. Jeb Bush (R) in December 1998.
 
DeSantis’ appointments stand to impact the partisan balance of the court, which previously consisted of a three Chiles (D) appointees, three appointees from Gov. Charlie Crist, who was elected as a Republican but later switched to the Democratic Party, and one appointee from Gov. Rick Scott (R). The court’s six current members were all appointed by Republican governors.
 
Justice Luck served as a judge on the Florida Third District Court of Appeal from 2017 to 2019. Gov. Rick Scott (R) previously appointed Luck to the appellate court in February 2017. He was previously a judge on the 11th Circuit Court of Florida from 2013 to 2017, having been appointed to the court by Gov. Scott on June 26, 2013.
 
Prior to his judicial career, Luck was an assistant United States attorney for the Southern District of Florida, a legislative correspondent for two U.S. senators, and a law clerk and staff attorney to Judge Ed Carnes of the U.S. Court of Appeals for the Eleventh Circuit. Luck also worked for Greenberg Traurig as part of the appellate section from 2005 to 2006.
 
Luck received his bachelor’s degree in economics, with highest honors, from the University of Florida. He obtained his J.D., magna cum laude, from the University of Florida College of Law. During his legal studies, Luck served as editor-in-chief of the Florida Law Review.
 
Florida is one of 22 Republican trifectas.


Iowa secretary of state’s error restarts multi-year process to amend the Iowa Constitution

Iowa Secretary of State Paul Pate (R) said that his office failed to report two constitutional amendments that the 86th Iowa General Assembly (2017-2018) approved in 2018.
 
The Iowa Constitution required Pate to publish notifications in two newspapers in each of Iowa’s four congressional districts at least three months before November 2018. Due to the error, the earliest the constitutional amendments could appear on the ballot is 2022.
 
In March and April 2018, the legislature approved:
  1. an amendment to provide a state right to own and bear firearms, and
  2. an amendment to allow the governor to appoint a lieutenant governor in the event of a vacant office and revise the gubernatorial line of succession.
In Iowa, constitutional amendments are referred to the ballot for voter consideration after a simple-majority vote during two successive legislative sessions with legislative elections in between. The 87th Iowa State Legislature (2019-2020) needed to approve the constitutional amendments one more time for them to appear on the ballot in 2020.
 
Pate said that his office’s failure to publish notices meant that the first-session vote on the amendments didn’t count toward referral, and the process needed to restart. Pate said, “Due to a bureaucratic oversight, my office failed to publish the required notifications in Iowa newspapers of two continuing resolutions passed by the Iowa Legislature last year. I accept full responsibility for this oversight and offer my sincerest apology to the legislators and supporters who worked so hard on these bills.”
 
Both of the constitutional amendments received the support of legislative Republicans in 2018. Zero House Democrats supported the amendments, while Senate Democrats were divided on both of them. Democrats won 46 of 100 state House seats in November 2018 and could have an opportunity to block the constitutional amendments during the 88th Iowa State Legislature (2021-2022) if they can pick up at least four more seats in November 2020.
 
In 2004, former Secretary of State Chet Culver (D) made a similar mistake as Pate, failing to publish a notification on an amendment to replace the words insane and idiot with mental incompetence in the state constitution. The Iowa State Legislature had to re-start the process and referred the amendment to the ballot in 2008.
 
In 12 states, proposed amendments must be approved in two successive sessions of the state’s legislature. In 10 of these, approval in two sessions refers the amendments to the ballot for voter ratification. In one of these states, South Carolina, the state legislature votes to put the amendment before the state’s voters in just one session and later, if the state’s voters approve the amendment, the state legislature takes it up again. Delaware requires votes in two successive sessions of its state legislature, but these proposed amendments do not need to go before the state’s voters.


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