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Documenting America’s Path to Recovery: November 30, 2020


Introducing Ballotpedia’s Runoff Report, a daily newsletter on Georgia’s runoffs and the fight for Senate control

Republicans have secured 50 seats in the next U.S. Senate and Democrats 48 (including two independents who caucus with them). Control of the next Senate will come down to Georgia’s runoff elections. 

On Nov. 30, we launched Runoff Report, a daily newsletter providing the latest on each runoff and the overarching fight for Senate control. Here’s the type of stories you can expect to find: 

  • Balanced coverage of candidates’ statements, events, and activities
  • Campaign ad comparisons
  • Policy/issue position comparisons
  • Campaign events with national political figures 
  • Satellite spending summaries
  • Features on the major state and national influencers involved in the races
  • Historical context on Senate runoffs in the state
  • Voting trends in the state and key counties

Georgia was the only state to hold two Senate elections in 2020: a regularly scheduled election and a special election to complete the term Johnny Isakson (R) won in 2016. Gov. Brian Kemp (R) appointed Kelly Loeffler (R) to succeed Isakson, who resigned at the end of 2019. She and Raphael Warnock (D), senior pastor at Ebenezer Baptist Church, are running to complete the term ending in January 2023. David Perdue (R), first elected in 2014, is seeking re-election in the other race. He faces Jon Ossoff (D), who ran against Karen Handel (R) in the 6th Congressional District special election in 2017. 

Georgia holds runoffs when no candidate receives a majority of the vote in the general election. 

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Ballotpedia has tracked 132 lawsuits regarding public-sector union policy since Janus decision

On June 27, 2018, the Supreme Court of the United States issued its decision in Janus v. American Federation of State, County, and Municipal Employees (Janus v. AFSCME), ruling that public-sector unions cannot compel non-member employees to pay fees covering the costs of non-political union activities. This decision overturned precedent established in Abood v. Detroit Board of Education in 1977.

In the wake of Janus, individuals and advocacy groups across the nation have filed over 100 new lawsuits involving a wide array of public-sector labor laws and union practices. To date, we have tracked 132 post-Janus lawsuits. At least 58 of these lawsuits involve attempts to obtain refunds for fees that employees had to pay to unions prior to Janus. At least 57 involve challenges to membership withdrawal procedures (namely, laws or policies that allow union members to resign their membership only during specified periods of times).

Of these 132 lawsuits, 129 have been filed in the federal courts. Fifty-five suits have been filed in the Ninth Circuit alone, 42.7% of all federal post-Janus lawsuits. The Ninth Circuit encompasses federal district courts in Alaska, Arizona, California, Hawaii, Idaho, Montana, Nevada, Oregon and Washington. The Third Circuit has seen the second-greatest number of post-Janus lawsuits: 22, or 17% of the total. The Third Circuit’s jurisdiction encompasses Delaware, New Jersey, and Pennsylvania.

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Special primary runoff election to be held in Georgia State Senate district

The District 39 seat in the Georgia State Senate is up for election in a special Democratic primary runoff on December 1. The primary election took place on November 3, and the top two vote recipients—Sonya Halpern and Linda Pritchett—advanced to the runoff.

The special election became necessary after incumbent Nikema Williams (D) withdrew from the regularly scheduled election after advancing from the Democratic primary. Williams withdrew her bid for re-election after she was chosen by the Democratic Party of Georgia to replace incumbent candidate John Lewis (D) on the general election ballot for Georgia’s 5th Congressional District race after Lewis’ death on July 17, 2020. Since no Republican or third-party candidates filed for the seat, the winner of the Democratic primary runoff will replace Williams.

Georgia has a Republican state government trifecta. A trifecta exists when one political party simultaneously holds the governor’s office and majorities in both state legislative chambers. Republicans control the state Senate by a 35-21 margin and the state House by a 105-74 margin with one vacancy.

As of November, 59 state legislative special elections have been scheduled for 2020 in 27 states. Between 2011 and 2019, an average of 77 special elections took place each year.

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SCOTUS postpones case hearing

Department of Justice v. House Committee on the Judiciary, which was previously scheduled for argument before the Supreme Court of the United States on December 2, 2020, has been removed from the court’s December argument calendar after the court granted the House Judiciary Committee’s motion for the move.

The case came on a writ of certiorari to the United States Court of Appeals for the District of Columbia Circuit. It concerns the Federal Rules of Criminal Procedure and whether an impeachment trial conducted by the U.S. Senate counts as a judicial proceeding for the purposes of disclosing secret grand jury information.

The U.S. House Committee on the Judiciary requested access to secret grand jury materials referenced in Robert Mueller’s report about his investigation into potential Russian interference in the 2016 election. The U.S. District Court for the District of Columbia agreed to disclose the materials, ruling that a potential U.S. Senate impeachment trial counted as a judicial proceeding that allowed disclosure of secret grand jury materials. The D.C. Circuit affirmed the lower court’s decision.

As of November 20, 2020, the United States Supreme Court had agreed to hear 45 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.

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Hawaii senate confirms Eddins to state supreme court

Image of the Hawaii Supreme Court building in Honolulu.

On November 19, 2020, the Hawaii State Senate confirmed Todd Eddins to succeed Justice Richard W. Pollack on the Hawaii Supreme Court. Gov. David Ige (D) appointed Eddins to the court on October 23, 2020. Eddins is Ige’s first nominee to the five-member supreme court.

The seat became vacant when Pollack retired on June 30, 2020, after reaching the mandatory retirement age of 70 years.

Under Hawaii law, state supreme court justices are selected through the assisted appointment method. The governor chooses an appointee from a list of candidates submitted by the judicial nominating commission. The nominee requires confirmation from the Hawaii State Senate.

Eddins became a judge of the O’ahu First Circuit of Hawaii in 2017 after being appointed by Gov. Ige on February 9. The Hawaii State Senate confirmed Eddins on March 3, 2017.

Before his appointment to the O’ahu First Circuit, Eddins worked as a trial lawyer for the Office of the Public Defender. He also served as a clerk for Justice Yoshimi Hayashi of the Hawaii Supreme Court.

Eddins earned an undergraduate degree from the College of William & Mary and a J.D. from the University of Hawaii, where he was the executive editor of the University of Hawaii Law Review.

The Hawaii Supreme Court is the state’s court of last resort. As of October 2020, three judges on the court were appointed by a Democratic governor, and one judge on the court was appointed by a Republican governor.

In 2020, there have been 22 supreme court vacancies in 16 of the 29 states where replacement justices are appointed instead of elected. One vacancy occurred when a chief justice died, and 21 vacancies were caused by retirements.

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U.S. Supreme Court announces circuit assignments

Image of the front of the United States Supreme Court building

The U.S. Supreme Court (SCOTUS) announced circuit assignments for the chief justice and the associate justices on November 20. Under Title 28, United States Code, Section 42, each SCOTUS justice is assigned to one of the 13 U.S. courts of appeal. The U.S. courts of appeal are the intermediate appellate courts of the U.S. federal courts.

The circuit justice is responsible for ruling on motions arising from his or her assigned circuit and traditionally refers motions from that circuit to the court as a whole.

The circuit assignments for the 2020-2021 term are:

  • Chief Justice John G. Roberts – Assigned to the 4th Circuit, the Federal Circuit, and the District of Columbia Circuit.
  • Justice Clarence Thomas – Assigned to the 11th Circuit
  • Justice Stephen Breyer – Assigned to the 1st Circuit
  • Justice Samuel Alito – Assigned to the 3rd and 5th Circuits
  • Justice Sonia Sotomayor – Assigned to the 2nd Circuit
  • Justice Elena Kagan – Assigned to the 9th Circuit
  • Justice Neil Gorsuch – Assigned to the 10th Circuit
  • Justice Brett Kavanaugh – Assigned to the 6th and 8th Circuits
  • Justice Amy Coney Barrett – Assigned to the 7th Circuit

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SCOTUS grants review in two cases concerning law enforcement officers’ search-and-seizure authority

On November 20, 2020, the Supreme Court of the United States (SCOTUS) granted review in two cases for a total of two hours of oral argument during its October Term for 2020-2021. The cases have not yet been scheduled for argument. 

Caniglia v. Strom

The case: In 2015, Edward Caniglia and his wife had an argument at their home. During the argument, Caniglia brought out an unloaded gun from their bedroom. Mrs. Caniglia stayed the night at a nearby hotel. In the morning, she called the police to request a wellness check on her husband and an escort to their home, and she stated that she was concerned for her husband’s well-being. At the home, the police spoke with Caniglia. The sergeant determined that Caniglia was imminently dangerous to himself and to others. The police requested that Caniglia go to a nearby hospital for a psychiatric evaluation. Caniglia complied, alleging that he did so based on a promise from police that they would not confiscate his guns. The police record does not include evidence of such a promise. The sergeant entered the home and seized two firearms, two magazines, and ammunition. Later, Caniglia attempted to retrieve his firearms from the police department several times. His requests were denied. Caniglia filed suit in the U.S. District Court for the District of Rhode Island against the police department and the City of Cranston, Rhode Island, alleging violations to the Second and Fourth Amendments to the U.S. Constitution and to Rhode Island state law. The firearms were returned to Caniglia. The district court granted the defendants’ motion for summary judgment. On appeal, the U.S. Court of Appeal for the 1st Circuit affirmed the district court’s ruling.

The issue: Whether the Fourth Amendment’s warrant requirement “community caretaking” exception extends to the home.

United States v. Cooley

The case: In 2016, Crow Tribe of Montana Officer James Saylor detained Joshua Cooley and searched Cooley’s vehicle, which was pulled over in Indian Country on U.S. Route 212. Saylor confiscated several firearms and observed equipment that appeared to contain methamphetamine. Cooley was arrested and indicted in the U.S. District Court for the District of Montana. The district court granted Cooley’s motion to suppress evidence from Saylor’s search. The district court ruled Saylor acted outside of his authority by conducting an “unreasonable search and seizure” under the Indian Civil Rights Act. The U.S. government appealed, but the U.S. Court of Appeals for the 9th Circuit affirmed the lower court’s ruling. The U.S. government then appealed to the U.S. Supreme Court.

The issue: Whether the District of Montana and the 9th Circuit were wrong to suppress evidence on the theory that an Indian tribe police officer was unauthorized to detain and search a non-Indian based on a potential violation of state or federal law while on a public right-of-way in an Indian reservation.

The Supreme Court began hearing cases for the term on October 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. The court generally releases the majority of its decisions in mid-June.

As of November 24, 2020, the court had agreed to hear 45 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. The court had issued opinions in two cases this term. The cases were decided without argument.

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Colorado governor appoints Maria Berkenkotter to state supreme court

Photo of Colorado State Supreme Court building

Colorado Gov. Jared Polis (D) appointed Maria Berkenkotter to the Colorado Supreme Court on November 20, 2020. Berkenkotter will succeed Chief Justice Nathan Coats, who is retiring in January 2021 when he reaches the mandatory retirement age of 72. Berkenkotter is Polis’s first nominee to the seven-member supreme court.

Under Colorado law, state supreme court justices are selected through the assisted appointment method. The governor chooses an appointee from a list of candidates submitted by the judicial nominating commission. Initial terms on the supreme court last at least two years, after which justices stand in retention elections. Subsequent terms last 10 years.

Berkenkotter was a judge for the Twentieth Judicial District Court in Colorado from 2006 to 2017. She was appointed by former Governor Bill Owens (R) and became chief judge in 2013. 

Prior to joining the Twentieth Judicial District Court, Berkenkotter ran the Antitrust, Consumer Protection, and Tobacco Litigation Units of the Attorney General’s office. Previously, she practiced law at Holmes & Starr, P.C. in Denver.

Berkenkotter earned a J.D. from the University of Denver Law School in 1987. 

The Colorado Supreme Court is the state’s court of last resort. As of November 2020, six judges on the court were appointed by a Democratic governor, and one judge was appointed by a Republican governor.

In 2020, there have been 22 supreme court vacancies in 16 of the 29 states where replacement justices are appointed instead of elected. One vacancy occurred when a chief justice died, and 21 vacancies were caused by retirements.

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Challenge to Colorado school board recall petition denied in hearing

An effort to recall Lance McDaniel from his position as the District A representative on the Montezuma-Cortez School District Board of Education in Colorado was approved to move forward in a petition challenge hearing on November 23, 2020. If the decision is not appealed in district court and if McDaniel does not resign by November 30, a recall election will be scheduled.

The recall effort started in July 2020. Recall supporters said McDaniel had shown a “lack of leadership and has proven to be a poor role model for our children,” regarding several of his social media posts. The petition stated, “We need school board members that understand leadership and the power of mentoring, and know not to voice their personal, political, or social opinions that could influence children.”

McDaniel said he was not concerned about the recall effort. “When it gets down to it, I’m a loudmouth liberal, and they don’t like that,” he said. McDaniel said he stood by his social media posts. “The conservatives don’t like the fact that there are some more progressive people in the town,” he said.

To get the recall on the ballot, supporters of the effort had to submit 1,126 signatures in 60 days. The number of signatures was equal to 40% of the citizens in the school district who voted in the last school board election. Recall supporters submitted the signatures by the deadline, and Montezuma County Clerk and Recorder Kim Percell determined enough signatures were valid.

Before a recall election could be scheduled, four challenges were submitted against the petition, saying the petition was “baseless, frivolous and infringes on Mr. McDaniel’s First Amendment rights of freedom of speech.” A hearing on the challenges was held on November 19, and the challenges were denied on November 23. Hearing Officer Mike Green said that the recall petition met the statutory requirements.

McDaniel is one of seven members on the board of education. He was appointed to his position in 2018.

In 2019, Ballotpedia covered a total of 151 recall efforts against 230 elected officials. Of the 66 officials whose recalls made it to the ballot, 34 were recalled for a rate of 52%. That was lower than the 63% rate and 57% rate for 2018 and 2017 recalls, respectively.

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