|Welcome to Documenting America’s Path to Recovery, where we track the status of reopening in all 50 states. Today we look at a change in travel restrictions in Maine, North Dakota’s new risk level designations for 15 counties, a featured lawsuit, and more. Want to know what happened yesterday? Click here.|
Since our last edition
What is open in each state? For a continually updated article on reopening status in all 50 states, click here.
Daily feature: Featured lawsuit
Once a week, we take a closer look at a noteworthy lawsuit involving governmental responses to the COVID-19 outbreak in the United States. We define a noteworthy lawsuit as one that has garnered significant media attention, involves major advocacy groups, or deals with unique legal questions. This week, we look at a lawsuit involving COVID-19 restrictions in Pennsylvania.
County of Butler v. Wolf
On Sept. 22, Judge William Stickman IV of the U.S. District Court for the Western District of Pennsylvania declined to suspend his earlier order striking down some of Gov. Tom Wolf’s (D) COVID-19 orders pending appeal in the U.S. Court of Appeals for the Third Circuit.
What is at issue?
Wolf sought to suspend Stickman’s initial ruling, issued Sept. 14. In the initial ruling, Stickman, an appointee of President Donald Trump (R), found “(1) that the congregate gathering limits … violate the right of assembly enshrined in the First Amendment; (2) that the stay-at-home and business closure components of [Wolf’s] orders violate the due process clause of the Fourteenth Amendment; and (3) that the business closure components of defendants’ orders violate the Equal Protection Clause of the Fourteenth Amendment.”
How did the court rule?
Stickman ruled a suspension of his order was unnecessary, given his finding that Wolf had not met the “burden of establishing even the minimal showing of success on the merits” upon appeal. Stickman said Wolf’s participation in “large public protests across the Commonwealth” during the summer, and the voluntary suspension of certain stay-at-home and business closure orders undermined Wolf’s argument that his administration and the people of Pennsylvania would result in irreparable harm absent a delay.
What are the reactions, and what comes next?
Wolf said, “We’re working in the meantime to present schools and others with guidance to say ok, in our best estimation from the health point of view, you got to be careful if you get together.”
Click here to learn more.
There is one state constitutional amendment on the ballot in Illinois for November 3, 2020. The constitutional amendment would repeal the requirement that the state’s personal income tax is a flat rate across income. Instead, the amendment would allow for legislation to enact a graduated income tax. Contributions to the campaigns surrounding the amendment have topped $80 million.
Gov. J.B. Pritzker (D) advocated for a graduated income tax structure for Illinois during his 2018 gubernatorial campaign. One of his former staffers, Quentin Fulks, is chairing the campaign Vote Yes for Fairness to support the amendment. Through September 18, the campaign Vote Yes For Fairness, along with allied committees, had received $58.97 million. Gov. Pritzker provided the campaign with $56.5 million, or 96 percent of supporters’ total funds. Other top donors include the AARP ($664,680), Omidyar Network ($500,000), National Education Association ($350,000), and American Federation of Teachers ($250,000).
Opponents of the constitutional amendment have organized four PACs, and two of them have received funds through September 18—the Coalition to Stop the Proposed Tax Hike and the Say No to More Taxes. Between the PACs, opponents had received $21.65 million. Kenneth Griffin, CEO of the investment firm Citadel, contributed $20.00 million to the Coalition to Stop the Proposed Tax Hike. The Illinois Opportunity Project, a 501(c)(4) nonprofit organization, donated $550,000. Other top donors—who each gave $100,000—include Richard Uihlein, the Samuel Zell Revocable Trust, and MacNeil Automotive Products.
While the constitutional amendment itself would not adopt a graduated income tax, the Illinois State Legislature passed legislation to go into effect if voters approve the amendment. The legislation would change the state’s income tax from a flat rate to six graduated rates beginning on January 1, 2021. Currently, income is taxed at a flat rate of 4.95% in Illinois. Under the bill, the proposed tax rates would range from 4.75% to 7.99%.
At the election on November 3, the constitutional amendment needs to receive either (a) 60 percent of votes cast on the ballot measure itself or (b) a simple majority of all of those voting in the election. Since 1996, voters have approved 83 percent of the constitutional amendments put on the ballot by the legislature. The last amendment that was rejected would have required a three-fifths approval by the General Assembly, city councils, and school districts to increase the pension benefits of their employees.
The Illinois constitutional amendment is one of three income tax-related ballot measures in 2020. In Arizona, Proposition 208 would enact a 3.50% income tax, in addition to the existing income tax (4.50% in 2020), on income above $250,000 (single filing) or $500,000 (joint filing). Proposition 208 would distribute the revenue from the 3.50% income tax to teacher and classroom support staff salaries, retention programs, and career and technical education programs. In Colorado, Proposition 116 would decrease the state’s flat income tax rate from 4.63% to 4.55%.
|September 24, 2020: When asked if he would commit to a peaceful transfer of power after the election, Donald Trump responded, “We’re going to have to see what happens.” Senate Republicans released their interim report on Hunter Biden’s business dealings in Ukraine.
Click here to learn more.
The Office of Personnel Management (OPM) on September 21 issued a proposed rule that would reclassify administrative law judges (ALJ) within the federal civil service. The proposed rule aims to implement President Donald Trump’s (R) Executive Order 13843 of July 2018, which moved ALJs from the competitive service to the excepted service.
Prior to E.O. 13843, OPM screened ALJ candidates through a merit-based selection process as part of the competitive service. Agencies could only hire ALJs from OPM’s pool of vetted candidates.
President Trump issued E.O. 13843 in response to the United States Supreme Court’s June 2018 decision in _Lucia v. SEC_, which held that ALJs are officers of the United States who must be appointed by the president, the courts, or agency heads rather than hired by agency staff. The reclassification of ALJs as members of the excepted service allows agency heads to directly appoint ALJs and select candidates who meet specific agency qualifications, according to the order.
Opponents of Trump’s executive order have argued that moving ALJs outside of the competitive service threatens their impartiality by allowing partisan agency heads to appoint ALJs based on their own standards.
The proposed rule from OPM requires that agency heads appoint new ALJs to positions within the excepted service. The proposed rule also clarifies that certain protections aimed at ensuring the independence of ALJs remain intact, such as the prohibition against agencies subjecting ALJs to performance reviews and the role of the Merit Systems Protection Board (MSPB) in overseeing ALJ discipline. The proposed rule is open to public comments through November 20, 2020.
The Federal Communications Commission (FCC) on September 14 released a Report and Order allowing the agency’s adjudicators to conduct more hearings through written testimony rather than in-person, trial-type procedures.
The Communications Act of 1934 does not require the FCC to hold on-the-record hearings or follow formal adjudication procedures. However, the agency has historically modeled its hearings on the Administrative Procedure Act’s (APA) formal adjudication procedures, which require trial-type hearings presided over by an administrative law judge (ALJ). The FCC’s order shifts the agency’s default approach to hearings from formal, trial-type processes to informal procedures that rely on written testimony. The order allows the Commission or the presiding officer in a case to direct that a hearing be conducted through written testimony rather than trial-type procedures when appropriate. In order to determine whether written testimony satisfies procedural due process requirements in a particular case, the presiding officer must apply the three-part test from the U.S. Supreme Court decision in _Mathews v. Eldridge_, which evaluates the fairness and reliability of existing procedures in addition to the added value of further procedural safeguards.
The debate about the breadth of procedural due process protections in formal and informal adjudication is one of the areas of disputation key to understanding the administrative state. While some scholars argue that formal adjudication’s trial-type hearings are necessary to satisfy due process, others claim that the written testimony provided during informal adjudication is sufficient.
Welcome to Documenting America’s Path to Recovery, where we track the status of reopening in all 50 states. Today we look at Indiana’s move into stage 5 of reopening, the return of in-class instruction in Florida’s largest school district, a featured story from the 1918 influenza pandemic, and more. Want to know what happened yesterday? Click here.
The next 24 hours
What is changing in the next 24 hours?
- Ohio (Republican trifecta): On Sept. 23, Gov. Mike DeWine (R) announced that the Department of Health had released an order allowing self-serve food stations to reopen across the state on Sept. 24.
Since our last edition
What is open in each state? For a continually updated article on reopening status in all 50 states, click here.
- California (Democratic trifecta): Health and Human Services Director Mark Ghaly announced Riverside, Alameda, San Luis Obispo, San Mateo, and Solano counties could move from purple into the red phase of reopening. Ghaly also said El Dorado, Lassen, and Nevada counties could move into the orange phase, and Mariposa County could enter the yellow phase. The changes were effective Sept. 22.
- Florida (Republican trifecta): The Miami-Dade County Public Schools board voted Sept. 22 to return students to in-class instruction. Prekindergarten, kindergarten, first grade, and students with special needs will return on Oct. 14. All others will return on Oct. 21. Families can opt for virtual learning. Miami-Dade County Public Schools is the fourth largest district in the United States.
- Indiana (Republican trifecta): On Sept. 23, Gov. Eric Holcomb (R) announced that Indiana would enter the last stage of reopening, called Stage 5, on Sept. 26. Holcolmb said that the state would announce updated guidelines for Stage 5 on Thursday. Previously, Stage 5 allowed for most types of businesses to operate without restrictions, including restaurants, bars, malls, gyms, and amusement parks. When the state enters Stage 5, masks will still be required in public areas.
- Louisiana (divided government): Jefferson Parish met state requirements to reopen bars starting Sept. 23.
- Maine (Democratic trifecta): Gov. Janet Mills (D) amended the state’s Standing Order to allow individuals to be tested for the coronavirus without a written order from a doctor.
- Maryland (divided government): On Sept. 22, Karen Salmon, the Maryland Superintendent of Schools, announced that she had approved in-person reopening plans for every school district in Maryland.
- Massachusetts (divided government): On Sept. 23, Gov. Charlie Baker announced that he would ease restrictions on restaurants beginning Sept. 28. On that day, the number of patrons allowed per table will increase from six to 10, and restaurants will be allowed to use bar seating for food service. Bars and nightclubs, however, will remain closed.
- New Mexico (Democratic trifecta): Gov. Michelle Lujan Grisham (D) added Colorado, Oregon, and Rhode Island to the list of high-risk states. She moved Michigan and Hawaii to the low-risk classification. Individuals arriving from high-risk states are required to self-quarantine for 14 days.
- North Carolina (divided government): On Sept. 23, Gov. Roy Cooper (D) announced that stadiums and outdoor event venues can resume operation at 7% capacity on Oct. 2.
- Pennsylvania (divided government): Gov. Tom Wolf (D) announced the release of a new coronavirus exposure alert app that notifies users if they have been in contact with other users who later test positive for the virus.
- Vermont (divided government): On Sept. 22, Vermont Education Secretary Dan French announced that schools would advance to step 3 of reopening, which allows for inter-scholastic competitions, on Sept. 26. Step 3 also permits schools to use common areas like gyms and small groups of students.
Daily feature: The 1918 influenza pandemic
Every Wednesday, we feature a newspaper story written during the 1918 influenza pandemic that illustrates how the country contended with a national health emergency in the midst of an election year. To see more stories from 1918, click here.
On Nov. 5, 1918, the Cincinnati Commercial Tribune reported on a meeting by the local health board to consider lifting an order that prohibited public gatherings.
“Maine public interest relative to the influenza situation in Cincinnati is centered on the meeting of the Board of Health Wednesday and the action the board will take in the matter of lifting the ban on business, amusements, and public gatherings. The public health situation continues to improve, according to the Health Officer Peters, and it is predicted that Cincinnati will be practically free from the malady within a week or ten days.
Dr. Peters is preparing a statement on the influenza in Cincinnati from the time it first appeared to date and is compiling official reports from twenty large cities of the United States showing the ravages of the disease in those centers as compared with Cincinnati. This statement, together with a number of suggestions, will be given Wednesday to the members of the Board of Health and it will rest with that body to when the ban will be lifted.
In this section, we feature examples of other federal, state, and local government activity, private industry responses, and lawsuits related to the pandemic.
- On Sept. 17, a joint group of businesses and the parents of public school children filed suit against West Virginia Gov. Jim Justice (R) in the U.S. District Court for the Northern District of West Virginia. Plaintiffs are challenging what they call his “never-ending executive orders mandating restrictions of constitutionally protected activities.” The plaintiffs allege Justice’s COVID-19 orders violate the U.S. Constitution’s Takings Clause and encroach on its guarantees of substantive due process, procedural due process, equal protection, freedom of assembly, and freedom of expression. The plaintiffs allege Justice’s “actions in classifying business as ‘non-essential’ are arbitrary and irrational,” as is his “blanket closure of private or public schools.” Neither Justice nor his office has commented. The case has not yet been assigned to a judge.
In the last two weeks, a court order and a settlement have resulted in modifications to several mail-in voting procedures in Pennsylvania.
State directs counties not to reject ballots due to signature mismatch
On Sept. 14, the League of Women Voters and the Urban League of Greater Pittsburgh dropped a lawsuit against the state after election officials issued guidance directing counties not to reject a mail-in ballot due solely to a perceived mismatch between the signature on the return envelope and the signature on the voter’s registration record.
The guidance, released Sept. 11, lays out the following directions for county officials (emphasis added):
|“||If the Voter’s Declaration on the return envelope is signed and the county board is satisfied that the declaration is sufficient, the mail-in or absentee ballot should be approved for canvassing unless challenged in accordance with the Pennsylvania Election Code.The Pennsylvania Election Code does not authorize the county board of elections to set aside returned absentee or mail-in ballots based solely on signature analysis by the county board of elections.||”|
On Sept. 17, the Pennsylvania Supreme Court issued an order extending the mail-in ballot receipt deadline and authorizing the use of drop boxes for returning mail-in ballots in the general election. Mail-in ballots postmarked on or before Nov. 3, and ballots lacking any indication they were sent after this date, would be accepted if received by 5 p.m. on Nov. 6.
Writer for the court’s majority, Justice Max Baer said:
|“||Under our Extraordinary Jurisdiction, this Court can and should act to extend the received-by deadline for mail-in ballots to prevent the disenfranchisement of voters. … We additionally conclude that voters’ rights are better protected by addressing the impending crisis at this point in the election cycle on a statewide basis rather than allowing the chaos to brew, creating voter confusion regarding whether extensions will be granted, for how long, and in what counties.||”|
The high court declined to bar officials from rejecting mail-in ballots submitted without secrecy envelopes (sometimes referred to as “naked ballots”). State authorities had previously advised counties that they should count naked ballots.
Justices Debra Todd, Kevin M. Dougherty, and David N. Wecht joined Baer’s opinion. Chief Justice Thomas Saylor and Justices Sallie Mundy and Christine Donohue dissented in part from the majority opinion. Baer, Donohue, Wecht, Dougherty, and Todd are Democrats. Saylor and Mundy are Republicans.
Pennsylvania is a key battleground in the presidential contest. In the 2016 election, Donald Trump (R) defeated Hillary Clinton (D) in Pennsylvania 48.2-47.5 percent. Barack Obama (D) carried Pennsylvania in both 2008 and 2012, defeating John McCain (R) in 2008 54.5-44.2 percent and Mitt Romney (R) in 2012 52-46.6 percent.
Ballotpedia has identified four of Pennsylvania’s 18 congressional districts as battlegrounds in the general election: the 1st, 7th, 8th, and 17th districts. A Republican represents the 1st District. Democrats represent the other three. Overall, Pennsylvania’s current U.S. House delegation is split evenly between Democrats and Republicans.
Absentee/mail-in voting modifications since our last issue
Since our Sept. 9 edition, we’ve tracked the following absentee/mail-in voting modifications:
- Arizona: On Sept. 10, Judge Douglas Rayes of the U.S. District Court for the District of Arizona ordered election officials to give voters until 5:00 p.m. on the fifth business day after the election to sign their vote-by-mail ballot envelopes if they failed to sign at the time they submitted the ballots.
- Louisiana: On Sept. 16, Chief Judge Shelly Deckert Dick of the U.S. District Court for the Middle District of Louisiana ordered election officials to make available to voters in the Nov. 3 and Dec. 5 elections the same COVID-19 absentee/mail-in ballot application used in the state’s summer elections. This application offers COVID-19-specific reasons for requesting an absentee/mail-in ballot.
- Michigan: On Sept. 18, Judge Cynthia Stephens of the Michigan Court of Claims issued a ruling extending the absentee/mail-in ballot receipt deadline to Nov. 17 for ballots postmarked on or before Nov. 2. Stephens also authorized voters to allow anyone of their choosing to return their ballots between 5:01 p.m. on Oct. 30 and the close of polls on Nov. 3.
- Mississippi: On Sept. 18, the Mississippi Supreme Court reversed a lower court ruling that had extended absentee/mail-in voting eligibility to individuals with “pre-existing conditions that cause COVID-19 to present a greater risk of severe illness or death.”
- New York: On Sept. 18, the League of Women Voters reached a settlement agreement with New York election officials over ballot curing provisions for the general election.
- Ohio: On Sept. 11, Judge Stephen L. McIntosh of Ohio’s Franklin County Court of Common Pleas barred Secretary of State Frank LaRose (R) from rejecting absentee/mail-in ballot applications submitted via fax or email.
- Rhode Island: On Sept. 11, Secretary of State Nellie Gorbea (D) announced that her office would send absentee/mail-in ballot applications to all active registered voters in the general election.
- South Carolina:
- On Sept. 18, Judge J. Michelle Childs of the U.S. District Court for the District of South Carolina issued a preliminary injunction barring election officials from enforcing South Carolina’s witness requirement for absentee/mail-in ballots in the general election.
- On Sept. 16, Gov. Henry McMaster (R) signed H5305 into law, extending absentee/mail-in voting eligibility to all qualified electors in the general election. The legislation also established Oct. 5 as the start date for in-person absentee voting (i.e., early voting).
- Wisconsin: On Sept. 21, Judge William M. Conley of the U.S. District Court for the Western District of Wisconsin issued an order extending the absentee/mail-in ballot receipt deadline in Wisconsin to Nov. 9 for ballots postmarked on or before Election Day. Conley immediately stayed his ruling, giving defendants seven days to file an emergency appeal.
To date, 38 states have modified their absentee/mail-in voting procedures for the general election. These modifications can be divided into the following five broad categories:
- Automatic mail-in ballots: Five states (California, Montana, Nevada, New Jersey, and Vermont) are automatically sending absentee/mail-in ballots to all eligible voters in the general election. These states are shaded in yellow in the map below.
- Automatic mail-in ballot applications: Eleven states (Connecticut, Delaware, Illinois, Iowa, Maryland, Michigan, Nebraska, New Mexico, Rhode Island, South Dakota, and Wisconsin) are automatically sending absentee/mail-in ballot applications to all eligible voters in the general election. These states are shaded in dark blue in the map below.
- Eligibility expansions: Twelve states (Alabama, Arkansas, Kentucky, Louisiana, Massachusetts, Missouri, New Hampshire, New York, Oklahoma, South Carolina, Tennessee, and West Virginia) have expanded absentee/mail-in voting eligibility in the general election. These states are shaded in light blue in the map below.
- Deadline extensions: Five states (Georgia, Maine, Minnesota, Mississippi, and Pennsylvania) have extended absentee/mail-in ballot application or return deadlines in the general election. These states are shaded in dark gray in the map below.
- Other process changes: Five states (Arizona, North Carolina, Ohio, Texas, and Virginia) have made other modifications to its absentee/mail-in ballot procedures for the general election. These states are shaded in gray in the map below.
Redistricting developments since our last issue
Since our Sept. 9 edition, we’ve tracked the following redistricting-related developments.
- On Sept. 10, a three-judge panel of the U.S. District Court for the Southern District of New York struck down a presidential memorandum from President Donald Trump (R) directing census officials to “exclude from the apportionment base aliens who are not in a lawful immigration status.”
- In its per curiam (unsigned) opinion, the panel ruled that the president’s memorandum violated federal census and apportionment laws as follows:
- “First, pursuant to the virtually automatic scheme established by these interlocking statutes, the Secretary [of Commerce] is mandated to report a single set of numbers — ‘[t]he tabulation of total population by States’ under the decennial census — to the President, and the President, in turn, is required to use the same set of numbers in connection with apportionment. By directing the Secretary to provide two sets of numbers, one derived from the decennial census and one not, and announcing that it is the policy of the United States to use the latter in connection with apportionment, the Presidential Memorandum deviates from, and thus violates, the statutory scheme.”
- “Second, the Presidential Memorandum violates the statute governing apportionment because, so long as they reside in the United States, illegal aliens qualify as ‘persons in’ a ‘State’ as Congress used those words.”
- The panel included Judges Richard Wesley, Peter Hall, and Jesse Furman. Wesley and Hall are George W. Bush (R) appointees. Furman is a Barack Obama (D) appointee.
- On Sept. 16, the Department of Justice filed its notice of appeal to the U.S. Supreme Court, which has yet to take up the matter.
To date, we have tracked 236 lawsuits and/or court orders involving election policy issues and the COVID-19 outbreak. In each issue of The Ballot Bulletin, we shine a spotlight on what we consider one of the more interesting recent developments in this area. Click here to view the complete list of lawsuits and court orders.
This week, we turn our attention to Ohio Democratic Party v. LaRose.
- Case name: Ohio Democratic Party v. LaRose
- Case number: 20CV-5634
- State of origin: Ohio
- Court: Franklin County Court of Common Pleas, Ohio Court of Appeals for the Tenth Appellate District
- Summary: On Sept. 15, Judge Richard Frye of the Franklin County Court of Common Pleas ruled that Secretary of State Frank LaRose’s (R) order directing counties to provide no more than one absentee/mail-in ballot drop box per county “lacked a legitimate basis in evidence” and was “unreasonable and unlawful.” Frye initially stopped short of suspending the order, noting that LaRose had previously said he supported “additional drop boxes if they are legal.”
- In response to the ruling, Maggie Sheehan , a representative for LaRose, said, “Today’s ruling didn’t change anything, and the secretary’s directive remains in place.”
- On Sept. 16, Frye enjoined the order. However, anticipating LaRose would appeal, Frye immediately stayed his injunction. On Sept. 21, LaRose filed his appeal with the Ohio Court of Appeals for the Tenth Appellate District.
- Court documents:
To date, we have tracked 314 bills that make some mention of both election policy and COVID-19. States with higher numbers of relevant bills are shaded in darker blue on the map below. States with lower numbers of relevant bills are shaded in lighter blue. In states shaded in white, we have tracked no relevant bills.
Click here to learn more.
The Democratic National Committee (DNC) outraised the Republican National Committee (RNC) for the first time since March last month, according to September 2020 campaign finance reports filed with the Federal Election Commission Sunday.
Last month, the RNC raised $67.6 million and spent $62.6 million, while the DNC raised $78.4 million and spent $26.7 million. So far in the 2020 cycle, the RNC has raised 61.9% more than the DNC ($532.7 million to $281.0 million). The RNC’s 61.9% fundraising advantage is down from 78.6% in August and 75.0% in July.
At this point in the 2016 campaign cycle (the most recent presidential cycle), the RNC had a smaller 24.2% fundraising advantage over the DNC ($231.3 million to $181.4 million).
The Democratic Senatorial Campaign Committee (DSCC) raised $26.9 million and spent $26.0 million last month, while the National Republican Senatorial Committee (NRSC) raised $19.0 million and spent $21.8 million. So far in the 2020 cycle, the NRSC has raised 1.5% more than the DSCC ($167.7 million to $165.2 million). The NRSC’s 1.5% fundraising advantage is down from 7.3% in August and 6.5% in July.
On the House side, the Democratic Congressional Campaign Committee (DCCC) raised $22.7 million and spent $15.8 million, while the National Republican Congressional Committee (NRCC) raised $17.3 million and spent $15.6 million. So far in the cycle, the DCCC has raised 26.3% more than the NRCC ($248.8 million to $191.0 million). The DCCC’s 26.3% advantage is up from 26.2% in August and 25.9% in July.
At this point in the 2018 campaign cycle, Democrats led in both Senate and House fundraising. The DSCC had raised 7.8% more than the NRSC ($98.2 million to $90.9 million), while the DCCC had raised 31.3% more than the NRCC ($206.4 million to $150.5 million).
So far in the 2020 campaign cycle, the RNC, NRSC, and NRCC have raised 24.8% more than the DNC, DSCC, and DCCC ($891.4 million versus $695.0 million). The Republican fundraising advantage is down from 32.6% in August and 30.1% in July.
- Democratic National Committee
- Republican National Committee
- Fundraising in Congressional elections, 2018