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Documenting America’s Path to Recovery: January 13, 2021

Documenting America's Path to Recovery by Ballotpedia

Since our last edition

What rules and restrictions are changing in each state? For a continually updated article, click here.

  • California (Democratic trifecta): The state lifted the Greater Sacramento region’s stay-at-home order on Jan. 12, marking the first time a regional stay-at-home order has ended in California. The region’s stay-at-home order began on Dec. 10. Three of the state’s five regions still have active stay-at-home orders. Counties in the Greater Sacramento region are now subject to the state’s color-coded risk level restrictions. For more information on restrictions in each county, click here
  • Idaho (Republican trifecta): Gov. Brad Little (R) announced the state is starting its next phase of vaccine distribution. Little said teachers, school staff, and first responders would be prioritized between Jan. 13-31. The first phase included frontline healthcare workers and nursing home staff and residents. Individuals age 65 and older will be able to access the vaccine starting February 1.
  • Louisiana (divided government): Gov. John Bel Edwards (D) extended the state’s modified Phase 2 reopening until Feb. 10. The modified phase limits restaurants, retailers, gyms, personal care businesses, and movie theaters to 50% capacity. Bars must close indoor service if their parish has a positivity rate greater than 5%. Bars that are permitted to open are limited to 25% capacity. All indoor and outdoor gatherings are limited to the lesser of 25% capacity or a maximum of 75 people indoors or 150 people outdoors.
  • Massachusetts (divided government): On Tuesday, Jan. 12, Gov. Charlie Baker (R) announced that Gillette Stadium, the home of the New England Patriots, would serve as the state’s first mass vaccination site. The site is currently equipped to administer up to 300 vaccines a day to first responders. Baker said that number will increase to 5,000 per day as more individuals become eligible. 
  • New Jersey (Democratic trifecta): On Jan. 13, Gov Phil Murphy (D) announced the state will begin offering vaccines to individuals age 65 and older “effective almost immediately, within the next day or two.”
  • New York (Democratic trifecta): Gov. Andrew Cuomo (D) expanded Phase 1b of the state’s vaccination plan to include individuals age 65 and older and immunocompromised individuals. Previously, only individuals 75 and older were eligible.
  • Oklahoma (Republican trifecta): On Tuesday, Jan. 12, Gov. Kevin Stitt (R) announced that schools enforcing social distancing and mask-wearing will not have to quarantine students who were potentially exposed to the virus but are not showing symptoms. The new policy does not apply to students who were potentially exposed during after-school activities, including sports. Previously, schools were required to enforce a two-week quarantine for students potentially exposed to COVID-19, whether or not they exhibited symptoms.  
  • Oregon (Democratic trifecta): 
    • Gov. Kate Brown (D) announced that effective Jan. 15-28, 26 counties will be in the state’s Extreme Risk level, two will be at High Risk, two will be at Moderate Risk, and six will have Lower Risk restrictions. To see restrictions in a specific county or risk level, click here
    • Brown also announced individuals age 65 and older will be included in the next phase of the state’s vaccine distribution plan, starting Jan. 23, along with childcare workers and school staff. 
  • Washington (Democratic trifecta): On Tuesday, Jan. 12, Gov. Jay Inslee (D) issued an order allowing statewide elected officials to be sworn in remotely, instead of at the Washington state capitol building. 

Additional activity

In this section, we feature examples of other federal, state, and local government activity, private industry responses, and lawsuits related to the pandemic. 

  • On Tuesday, Jan. 12, Health and Human Services Secretary Alex Azar announced the federal government was changing its vaccine distribution guidelines and recommending states expand the pool of eligible recipients to include everyone 65 and older, including people with underlying health conditions. Additionally, Azar said the federal government would begin shipping second doses to states instead of holding them in reserve. He also announced a new system for allocating vaccines to states. Instead of basing the allocation on the total adult population in a state, the allocation will now be based on the population of people age 65 and older, as well as on how quickly states can administer vaccines.


Idaho school board recall elections scheduled

Recall elections seeking to remove three of the five members of the Pocatello-Chubbuck School District No. 25 board of trustees in Idaho have been scheduled for March 9, 2021. The recall ballots will ask voters if they are in favor of recalling Zone 1 Representative Jackie Cranor, Zone 2 Representative Janie Gebhardt, and Zone 5 Representative Dave Mattson.

The recall effort began on Sept. 18, 2020, when recall supporters filed paperwork with the Bannock County Elections Office after the board unanimously voted to continue using a hybrid teaching model (two days in-person and three days online) for middle school and high school students for the remainder of the first trimester of the 2020-2021 school year. The district started the hybrid model due to the COVID-19 pandemic and continued using it into the second trimester.

Recall supporters said the board was not fully representing the electorate on the issue of hybrid learning and other issues. The school district released a statement saying that the board weighs a number of factors when making decisions and that majority opinion does not always rule.

To get the recall effort against Cranor on the ballot, supporters had to collect 164 signatures from registered voters in Zone 1. To get the recall effort against Gebhardt on the ballot, supporters had to collect 351 signatures from Zone 2, and to recall Mattson, they had to collect 206 signatures from Zone 5. The petition signatures were verified by the Bannock County Elections Office on Dec. 10. Cranor, Gebhardt, and Mattson had until Dec. 17 to step down or face the recall election. None of the board members stepped down. 

In order for the recall elections to be successful, the total number of votes cast in favor of recall must be equal to or greater than the number of votes that first put the board members in office. The recall against Cranor needs at least 279 votes, the recall against Gebhardt needs at least 417 votes, and the recall against Mattson needs at least 278 votes.

Cranor, Gebhardt, and Mattson were also included in a 2018 recall effort against all five members who served on the board at the time. That effort started after the board voted to end the district’s 20-year-old open enrollment policy that allowed students to choose which high school they attended. The leader of that recall put the effort on hold before the deadline to submit petitions.

Recall efforts against school board members started in three other school districts in Idaho in 2020. All of the efforts named their school board’s response to the COVID-19 pandemic as a reason for recall. The effort in the West Ada School District did not go to a vote but saw two members resign from their positions. The recall effort against Aaron Proctor in the Whitepine School District went to the ballot on Nov. 3 and was approved with 57% of the vote, resulting in Proctor’s removal from office. The effort in the Idaho Falls School District is still ongoing.

In 2020, Ballotpedia covered a total of 226 recall efforts against 272 elected officials. Of the 49 officials whose recalls made it to the ballot, 29 were recalled for a rate of 59%. That was higher than the 52% rate for 2019 recalls but lower than the 63% rate for 2018 recalls.

Additional reading: 



315 state legislative seats flipped partisan control in the November 2020 elections

On Nov. 3, 2020, 5,875 state legislative seats were up for regularly scheduled elections across 86 of the nation’s 99 state legislative chambers. As a result of the election, control of 315 seats flipped from one party to another.

Republicans gained a net 141 seats, Democrats lost a net 133 seats, and independent and third party candidates lost a net eight seats. At least one seat flipped parties in every state holding regularly scheduled state legislative elections except Hawaii.

Of the 315 seats that changed party control, 215 (68.3%) were Democratic seats that went to Republicans. Seventy-eight (24.8%) were Republican seats that went to Democrats.

The table below shows the total number of state legislative seats that flipped partisan control during the 2020 state legislative elections. Columns show the number of seats that flipped to the given partisan affiliation listed in the top row. Rows show the number of seats that flipped from the given partisan affiliation listed in the leftmost column.

There was a 38% decrease in flipped state legislative seats compared to 2018, which saw 508 flips. Democrats flipped 80% fewer seats from Republicans in 2020 compared to 2018. Republicans saw a 131.2% increase in flipped Democratic seats. The table below shows the total number of flipped seats in both years and the number of seats flipped between major parties.

Fifty seats flipped party control in New Hampshire, the most of any state. Forty-nine of those seats flipped to Republicans—48 from Democrats and one from a Libertarian. One seat flipped from Republican to Democrat. As a result, both chambers of the New Hampshire General Court changed from Democratic to Republican control.

The map below shows states shaded to reflect the number of seats that changed party control in 2020. Darker shades indicate a larger number of flips. States shown in gray did not hold regularly scheduled state legislative elections in 2020.

To see more analysis and the full list of state legislative seats that flipped partisan control following the 2020 elections: Election results, 2020: State legislative seats that changed party control, Overview



U.S. Supreme Court grants review in 14 cases

On the evening of Jan. 8, 2021, the Supreme Court of the United States (SCOTUS) granted review in 14 cases for a total of 12 hours of oral argument during its 2020-2021 term. The cases have not yet been scheduled for argument.

The following is a list of the cases granted review by SCOTUS and the lower courts from which they originated:

U.S. Court of Appeals for the 3rd Circuit

  • Sanchez v. Wolf
  • Mahanoy Area School District v. B.L.

U.S. Court of Appeals for the 4th Circuit

  • United States v. Gary

U.S. Court of Appeals for the 5th Circuit

  • City of San Antonio, Texas v. Hotels.com, L.P.

U.S. Court of Appeals for the 9th Circuit

  • United States v. Palomar-Santiago
  • Americans for Prosperity v. Becerra (Consolidated with Thomas More Law Center v. Becerra)

U.S. Court of Appeals for the 10th Circuit

  • HollyFrontier Cheyenne Refining, LLC v. Renewable Fuels Association

 U.S. Court of Appeals for the 11th Circuit

  • Greer v. United States
  • Terry v. United States

U.S. Court of Appeals for the District of Columbia Circuit

  • Mnuchin v. Confederated Tribes of the Chehalis Reservation (Consolidated with Alaska Native Village Corporation Association v. Confederated Tribes of the Chehalis Reservation)
  • Guam v. United States

U.S. Court of Appeals for the Federal Circuit

  • Minerva Surgical Inc. v. Hologic Inc.

The Supreme Court began hearing cases for the term on Oct. 5, 2020. The court will hear a total of five hours of oral argument in six cases during its January sitting.

As of Jan. 11, the court had agreed to hear arguments in 60 cases during its 2020-2021 term. Of those, 12 were originally scheduled for the 2019-2020 term but were delayed due to the coronavirus pandemic. 

Additional reading:



SCOTUS announces oral arguments to be conducted via teleconference for January sitting

On Jan. 5, 2021, the U.S. Supreme Court announced that it would hear oral arguments via teleconference during its January sitting, following the same format that was used during its October, November, and December sittings.

Under this format, all relevant counsel are called the morning of the case’s argument day and are briefed with instructions. At the time of argument, the justices enter the main conference call for argument. Chief Justice Roberts will call the first case and will prompt counsel to present their arguments. The chief justice will conduct initial questioning. Once complete, the associate justices are able to ask questions in turns in order of seniority.

The following is a list of the current Supreme Court justices in order of seniority:

  • Chief Justice John Roberts – Appointed by President George W. Bush (R) in 2005
  • Associate Justice Clarence Thomas – Appointed by President George H.W. Bush (R) in 1991
  • Associate Justice Stephen Breyer – Appointed by President Bill Clinton (D) in 1994
  • Associate Justice Samuel Alito – Appointed by President George W. Bush (R) in 2006
  • Associate Justice Sonia Sotomayor – Appointed by President Barack Obama (D) in 2009
  • Associate Justice Elena Kagan – Appointed by President Barack Obama (D) in 2010
  • Associate Justice Neil Gorsuch – Appointed by President Donald Trump (R) in 2017
  • Associate Justice Brett Kavanaugh – Appointed by President Donald Trump (R) in 2018
  • Associate Justice Amy Coney Barrett – Appointed by President Donald Trump (R) in 2020

The court also announced that the oral arguments will be provided to the public via live audio stream. The audio files and argument transcripts for cases will be posted on the Court’s website following oral argument each day.

The Supreme Court began hearing cases for the term on Oct. 5, 2020. The court’s yearly term begins on the first Monday in October and lasts until the first Monday in October the following year.

As of Jan. 8, 2021, the court had agreed to hear 60 cases during its 2020-2021 term. Of those, 12 were originally scheduled for the 2019-2020 term but were delayed due to the coronavirus pandemic.

Additional reading:



Colorado Supreme Court rules that state board must defer to disciplinary actions taken by other state agencies

Photo of Colorado State Supreme Court building

On Dec. 21, the Colorado Supreme Court ruled in DOC v. Stiles that the Colorado State Personnel Board (Board) must defer to disciplinary decisions made by state agencies. The court’s decision aimed to shed light on the standard the Board must apply when reviewing other state agencies’ disciplinary decisions. 

The court held that when the Board considers appeals of decisions to discipline agency employees, they must apply the “arbitrary, capricious, or contrary to rule or law” standard instead of reviewing the facts of the case on a de novo basis. 

The arbitrary or capricious standard instructs the Board to give deference to the disciplinary action taken by the state agency. It prevents the Board from overturning such actions unless the agency failed to give honest consideration to the evidence involved in the case or violated a law or rule. De novo review would allow the Board to evaluate the evidence in the case and make its own decision without regard for the earlier conclusions made by the state agency that decided to discipline an employee.

The court remanded the case back to the state administrative law judge (ALJ), working for the Board, who had overruled the state agency disciplinary action at issue in the case. 

In the opening paragraph of the opinion announcing the decision, Justice Carlos Samour wrote about the stakes of the case in the following way: “At a micro level, it will affect whether Mathew Mark Stiles keeps his job at the Department of Corrections (“DOC”). At a macro level, it will affect the 30,000-plus other certified state employees in Colorado’s personnel system.”

The standard articulated by the Colorado Supreme Court is similar to the arbitrary-or-capricious test established by the federal Administrative Procedure Act. Under that test, courts reviewing agency actions invalidate any that they find to be “arbitrary, capricious, an abuse of discretion, or otherwise not in accordance with law.”

To learn more about state administrative law judges or judicial deference, see here:

Additional reading:

Text of the decision:



Federal Register weekly update: New year, new significant rules

The Federal Register is a daily journal of federal government activity that includes presidential documents, proposed and final rules, and public notices. It is a common measure of an administration’s regulatory activity.

The Federal Register kicked off 2021 by publishing 1,736 pages during the week of Jan. 4 to Jan. 8. Over the same period in 2020, 2019, and 2018, the Federal Register published 418 pages, 34 pages, and 704 pages, respectively. As of Jan. 8, the 2021 total led the 2020 total by 1,318 pages, the 2019 total by 1,702 pages, and the 2018 total by 1,032 pages. 

The Federal Register hit an all-time high of 95,894 pages in 2016.

This week’s Federal Register featured the following 486 documents:

  • 403 notices
  • seven presidential documents
  • 24 proposed rules
  • 52 final rules

One proposed rule concerning critical habitat designation for the ringed seal and two final rules regarding the determination of certain pension liabilities and corrections to holiday leave policies for U.S. personal services contractors were deemed significant under E.O. 12866—defined by the potential to have large impacts on the economy, environment, public health, or state or local governments. Significant actions may also conflict with presidential priorities or other agency rules. The Trump administration in 2021 has issued one significant proposed rule and two significant final rules.

Not all rules issued by the Trump administration are regulatory actions. Some rules are deregulatory actions pursuant to President Trump’s (R) Executive Order 13771, which requires federal agencies to eliminate two old significant regulations for each new significant regulation issued.

Ballotpedia maintains page counts and other information about the Federal Register as part of its Administrative State Project. The project is a neutral, nonpartisan encyclopedic resource that defines and analyzes the administrative state, including its philosophical origins, legal and judicial precedents, and scholarly examinations of its consequences. The project also monitors and reports on measures of federal government activity.

Click here to find more information about weekly additions to the Federal Register in 2019, 2018, and 2017: Changes to the Federal Register

Click here to find yearly information about additions to the Federal Register from 1936 to 2018: Historical additions to the Federal Register, 1936-2018



Four new Kentucky bills would limit the governor’s emergency powers

On Jan. 7, the Kentucky State House and Senate passed four pieces of legislation aimed at limiting the emergency powers of the state governor.  

The first bill, House Bill 1, would allow any businesses, schools, or associations to remain open as long as their operating plans meet or exceed guidance issued by the federal Centers for Disease Control and Prevention (CDC). The bill aims to override restrictions placed on businesses and other groups by Governor Beshear (D) in response to the coronavirus pandemic. It passed in the House with 70 votes in favor and 25 opposed.

The second bill, House Bill 5, would limit the authority of the governor to temporarily reorganize administrative agencies and transfer personnel without legislative approval. It passed in the House with 73 votes in favor and 22 opposed.

The third bill, Senate Bill 1, would limit the power of the governor during states of emergency. The bill would sunset after 30 days executive orders issued by the governor related to restrictions on in-person meetings and the functioning of schools, businesses, and churches unless the legislature approves an extension. The bill also allows the state legislature to terminate declarations of emergency at any time. It passed in the Senate with 27 votes in favor and nine opposed.

The final bill, Senate Bill 2, would make it more difficult for the governor to direct state administrative agencies to make emergency regulations without justifying the emergency nature of the situation. The bill defines an emergency situation and requires agencies to demonstrate such emergencies with documentary evidence to receive approval for new regulations from the Administrative Regulation Review Subcommittee. It passed in the Senate with 31 votes in favor and six opposed. 

The General Assembly may override a possible gubernatorial veto with a majority vote in both houses.

To learn more about state responses to the administrative state or the COVID-19 pandemic, see here:

Additional reading:

Text of House Bill 1:

Text of House Bill 5:

Text of Senate Bill 1:

Text of Senate Bill 2:

News report about the bills:

Kentucky legislative procedure:



Confirmation hearings set for Yellen, Mayorkas, and Blinken

January 13, 2021: Janet Yellen, Alejandro Mayorkas, and Tony Blinken will have confirmation hearings on Jan. 19.

Prior to taking office on January 20, 2021, President-elect Joe Biden (D) and his team must prepare for the transition between presidential administrations, including selecting senior White House staff and appointees to top government positions.

In 2020, there were 1,472 government positions subject to presidential appointment: 1,118 positions required Senate confirmation and 354 did not. The new administration is also responsible for filling thousands of other positions across the federal government, including in operations and policy. Every weekday, Ballotpedia is tracking potential Cabinet nominees, appointments, and news related to the Biden presidential transition.

Appointments and Nominations

Samantha Power, administrator of the United States Agency for International Development 

Biden announced on Wednesday that he had selected Samantha Power, a former ambassador to the United Nations from 2013 to 2017, as his nominee for administrator of the United States Agency for International Development. He also elevated the position to the National Security Council (NSC).

Power was a special assistant to the president and senior director for multilateral affairs and human rights from 2009 to 2013 in the Obama administration. She previously worked as an international correspondent and the founding executive director of the Carr Center for Human Rights Policy at the Harvard Kennedy School.

News

  • The Biden Transition said on Tuesday that Biden planned to appoint career officials as interim agency heads during the confirmation process for his nominees.
  • In addition to Lloyd Austin’s previously announced confirmation hearing, three more confirmation hearings were scheduled for Jan. 19
    • Janet Yellen, nominee for secretary of the Treasury, will appear before the Senate Finance Committee.
    • Alejandro Mayorkas, nominee for secretary of homeland security, will appear before the Senate Committee on Homeland Security and Governmental Affairs.
    • Tony Blinken, nominee for secretary of state, will appear before the Senate Foreign Relations Committee.
  • Three members of the Senate Armed Services Committee—Elizabeth Warren (D-Mass.), Tammy Duckworth (D-Ill.), and Richard Blumenthal (D-Conn.)—said they would vote against granting a waiver to Ret. Army General Lloyd Austin to allow him to serve as secretary of defense after leaving military service less than seven years ago.
  • The Washington Post reported that Biden is likely to select Gary Gensler, a former chairman of the Commodity Futures Trading Commission during the Obama administration, as his pick for chairman of the Securities and Exchange Commission.

Transition in Context: How many Trump and Obama Cabinet nominees withdrew?

Two of President Donald Trump’s (R) Cabinet secretary nominees withdrew from consideration after being nominated:

  • Andrew Puzder for secretary of labor: Politico reported that Puzder did not have sufficient Republican support to be confirmed.
  • Ronny Jackson for secretary of veterans affairs: The Senate Veterans’ Affairs Committee released a list of allegations against Jackson, including inappropriate medication prescription and drunk driving. Jackson denied the allegations.

Three of President Barack Obama’s (D) Cabinet secretary nominees withdrew:

  • Bill Richardson for secretary of commerce: Richardson was under investigation for his potential involvement in improperly giving a state contract to a donor. The Department of Justice ultimately did not pursue any charges.
  • Judd Gregg for secretary of commerce: Gregg, a Republican, said he had irresolvable conflicts with Obama regarding his economic stimulus plan.
  • Tom Daschle for secretary of health and human services: Daschle failed to pay approximately $140,000 in back taxes. He withdrew because he said he did not have the full faith of the American people.

What We’re Reading



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