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Sixteen states file suit against Trump’s emergency declaration

Sixteen state attorneys general filed a lawsuit in California’s Northern District against President Donald Trump’s emergency declaration to pay for a wall along the southern border.
 
The lawsuit states that the emergency declaration shows a “flagrant disregard for the separation of powers. … President Trump has veered the country toward a constitutional crisis of his own making.”
 
On February 15, 2019, Trump declared a state of emergency on the southern border and directed $8.1 billion to build a border wall.
 
The lawsuit was filed by Democratic attorneys general from California, Colorado, Connecticut, Delaware, Hawaii, Illinois, Maine, Maryland, Michigan, Minnesota, Nevada, New Jersey, New Mexico, New York, Oregon, and Virginia. They said that the emergency declaration would cause their states to lose millions in federal funding and cause environmental damage.
 
At the time of the filing, the following states with Democratic attorneys general did not join the lawsuit: Iowa, Kentucky, Massachusetts, Mississippi, New Mexico, North Carolina, Pennsylvania, Rhode Island, Vermont, Washington, Wisconsin.
 
“The states’ lawsuit is likely to stall the implementation of the emergency declaration and generate protracted legal battles that could land before the conservative-dominated Supreme Court. The case may not be resolved before 2020, potentially making Mr. Trump’s plan an issue in the next presidential election,” according to The Wall Street Journal.


North Dakota Senate Republicans pass measure to add unique requirement for citizen-initiated constitutional amendments

On Monday, North Dakota Senate Republicans passed a constitutional amendment that would require citizen-initiated constitutional amendments—after they’ve made it on the ballot and been approved by voters at a statewide election—to then be sent to the legislature for approval. If not approved by the legislature, the measure would be required to go back on the ballot and be approved by voters a second time at the next statewide election.
 
This amendment was introduced as Senate Concurrent Resolution 4001 on January 3, 2019, by Republican Senators David Hogue, Dick Dever, and Gary Lee. On February 18, 2019, the state Senate passed SCR 4001 by a vote of 31 to 16. Of the 36 Senate Republicans, 31 voted yes while six joined all ten Senate Democrats in voting no. The introduced version of the proposal was designed to give the legislature the last vote on a citizen-initiated constitutional amendment, but it was amended to add the provision for a second statewide election. If the House—comprised of 78 Republicans and 15 Democrats—passes the amendment, it will appear on the ballot before voters at the general election on November 3, 2020.
 
If this measure goes on the ballot and is approved by voters, North Dakota would become the first state to require legislative approval after voter approval for citizen initiatives. Currently, South Carolina is the only state that requires the legislature to approve a legislatively-referred amendment again after voter approval. In Nevada, citizen-initiated constitutional amendments must be passed by voters at two consecutive statewide elections, but the state legislature is not involved in between the elections.
 
Typically, in states with a process for indirect initiatives, an initiative with a successful signature petition drive is considered first by the state legislature where the initiative—or in some cases legislation deemed equivalent—may be approved by the legislature; otherwise, the measure is placed on the ballot. In some states, an additional round of signatures is required to qualify an initiative for the ballot if the legislature does not approve it.


Kansas lawmaker battling cancer will resign his seat

Kansas state Rep. Greg Lewis (R) announced on February 18, 2019, that he would resign his seat, effective Friday, February 22, 2019. He is resigning after he was diagnosed with a brain tumor in December 2018.
 
Lewis has served in the state House representing District 113 since 2015. He was appointed to the chamber in March 2015 to replace J. Basil Dannebohm (R).
 
Pratt County Republicans will hold a special convention in March to select Lewis’ replacement. The replacement will complete Lewis’s term, which ends in January 2021.
 
Kansas is one of 14 states with a divided government. Republicans control the state Senate by a 28 to 11 margin with one independent and the state House by an 84 to 41 margin. The governor’s office is held by a Democrat, Laura Kelly.


One year ago: Dallet and Screnock advance in first round of Wisconsin Supreme Court voting

Wednesday marked the one-year anniversary of Wisconsin’s nonpartisan primary election for a seat on the state Supreme Court. Sauk County Circuit Judge Michael Screnock and Milwaukee County Circuit Judge Rebecca Dallet placed first and second in the primary, respectively, and advanced to the March 20 general election. Attorney Tim Burns placed last and was eliminated.
 
Although state Supreme Court elections in Wisconsin are nonpartisan, liberal and conservative groups typically coalesce around specific candidates. Incumbent Michael Gableman, a member of the court’s 5-2 conservative majority, did not seek re-election. Both Dallet and Burns ran with the support of Democratic-aligned groups and were expected to join the court’s liberal wing, while Screnock ran with the support of Republican-aligned groups and was expected to join the court’s conservative wing.
 
Dallet went on to beat Screnock in the April 3, 2018, election by a margin of 11 percentage points.
 
Another election to the Wisconsin Supreme Court will take place on April 2, 2019, between Appeals Judge Brian Hagedorn and Appeals Chief Judge Lisa Neubauer. Conservative-aligned groups in the state back Hagedorn and liberal-aligned groups back Neubauer.
 
Incumbent Justice Shirley Abrahamson, who was appointed to the court in 1976 by a Democratic governor, is not seeking re-election. If conservatives win this seat, it will expand their majority on the court to 5-2. If liberals retain Abrahamson’s seat, it will set up a battle for control of the court in 2020, when Dan Kelly, who was appointed to the court in 2016 by Gov. Scott Walker (R), will stand for election for the first time.


Obama-Obama-Trump pivot counties in 2018 state legislative elections

There are 206 pivot counties in the country-those that voted for Barack Obama (D) in both 2008 and 2012 and Donald Trump (R) in 2016. On November 6, 2018, 87 of the nation’s 99 state legislative chambers held regularly-scheduled elections for 6,073 seats. Of those, 453 state house districts and 138 state senate districts intersected with pivot counties. These 591 state legislative districts accounted for approximately 10 percent of all state legislative districts up for election in 2018.
 
Sixty-one districts switched partisan control in the 2018 elections. The elections resulted in a net change of 19 seats in favor of Democrats. The most common changes were:
  • Republican to Democrat: 31 districts
  • Democrat to Republican: 20 districts
  • Split districts to all-Democrats: 10 districts
Democratic candidates for state legislatures in districts that intersected with a pivot county won a net total of 19 seats (3.2 percent of the total they controlled going into the election). Nationally, the party gained 308 seats (9.7 percent of the total they controlled going into the election).
 
Republicans lost a lower percentage of these seats than they did nationally, 3.3 percent to 7.2 percent.
 
Across the country, Democrats gained control of six state legislative chambers from Republicans, while losing one chamber (Alaska House) to a power-sharing agreement.


Special elections to the 116th Congress: What’s coming up

As of February 20, 2019, two special elections have been scheduled for the 116th Congress: one for Pennsylvania’s 12th Congressional District and another for one of Arizona’s U.S. Senate seats. Another will be scheduled for North Carolina’s 3rd Congressional District.
 
Pennsylvania’s 12th Congressional District: A special election to fill the vacant U.S. House seat will be held on May 21, 2019. The vacancy occurred following the resignation of former Rep. Tom Marino (R) on January 23. Marino won the November 6, 2018, election with 66 percent support.
 
Rather than hold a primary, party committees are nominating their candidates for the race. On February 12, the Democratic Party nominated Marc Friedenberg as its candidate. Republican Party delegates are scheduled to choose their nominee on March 2.
 
U.S. Senate seat from Arizona: On November 3, 2020, there will be a special election to fill the rest of the 2017-2022 term that John McCain (R) was elected to in 2016. McCain died on August 25, 2018.
 
Arizona Gov. Doug Ducey (R) first appointed Jon Kyl (R) to fill the seat until the special election winner takes office, and Kyl resigned on December 18, 2018. Ducey then appointed Martha McSally (R). The winner of the special election will serve the remainder of McCain’s term, ending in January 2023.
 
North Carolina’s 3rd Congressional District: North Carolina’s 3rd District Rep. Walter Jones (R) died on February 10. Walter was unopposed in the 2018 election. Gov. Roy Cooper (D) must schedule a special election for the seat. Dates have not yet been set.
 
Ahead of these special elections, Republicans hold a 53-47 majority in the U.S. Senate, and Democrats hold a 235-197 majority in the U.S. House (with two vacancies and one 2018 election, in North Carolina’s 9th district, still to be decided).
 
There were 17 special elections called to fill vacancies in the 115th Congress in 2017 and 2018. Nine Republicans and eight Democrats won those elections. Four races resulted in a partisan flip from a Republican to Democratic officeholder.


Reverse pivot counties in 2018 U.S. House elections

Democratic candidates for the U.S. House carried all six reverse pivot counties in 2018. Reverse pivot counties are counties that voted for John McCain (R) in 2008, Mitt Romney (R) in 2012, and Hillary Clinton (R) in 2016.
 
The average margin of victory for 2018 U.S. House candidates in these counties was 11.05 percent. Cobb County, Georgia, had the lowest margin of victory with 7.18 percent and Henry County, Georgia, had the highest with 14.59 percent.
 
In five of the six counties, the Democratic U.S. House candidate had a larger margin of victory than Clinton did in 2016. Her average margin of victory in 2016 in these counties was 4.96 percent.
 
There are six reverse pivot counties in the country from four states: Orange County, California; Cobb County, Georgia; Gwinnett County, Georgia; Henry County, Georgia; Anne Arundel County, Maryland; and Fort Bend County, Texas. Their opposite, pivot counties, voted for Barack Obama twice and Donald Trump in 2016.


SCOTUS agrees to hear challenge to addition of citizenship question on 2020 census

The United States Supreme Court agreed on February 15, 2019, to hear a case challenging the addition of a citizenship question on the 2020 census. Oral argument is scheduled for late April 2019.
 
Judge Jesse Furman of the United States District Court for the Southern District of New York issued a ruling in the consolidated case on January 15, 2019, holding that Commerce Secretary Wilbur Ross violated the Administrative Procedure Act (APA) by including a question regarding citizenship status in the 2020 census. The U.S. Department of Justice (DOJ) appealed Furman’s decision to the United States Supreme Court. DOJ requested that the court bypass an appellate court decision in order to issue a ruling in time for the 2020 census.
 
Judge Furman stated in his decision that Ross had “failed to consider several important aspects of the problem; alternately ignored, cherry-picked, or badly misconstrued the evidence in the record before him; acted irrationally both in light of that evidence and his own stated decisional criteria; and failed to justify significant departures from past policies and practices.”
 
In addition to concerns about administrative procedure, the plaintiffs had also argued that Ross violated the equal protection component of the U.S. Constitution’s Due Process Clause because his actions were “motivated by invidious discrimination,” according to the ruling. 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.


New EPA rule would clarify federal jurisdiction over waters of the United States

The Environmental Protection Agency (EPA) and the Army Corps of Engineers issued a proposed rule under the Clean Water Act (CWA) that would distinguish water subject to federal regulation from water subject to state and tribal jurisdiction. The rule, published on February 14, 2019, revises definitions of “waters of the United States” established in 1986 and 2015 that have been subject to years of court battles.
 
According to the EPA’s notice of proposed rulemaking, the new rule will change the definition of the waters of the United States in order to comply with the text of the CWA and Supreme Court precedent better than the 2015 definition. In addition, the agency claims that the new rule would be easier to implement than the 2015 definition because it uses a more straightforward definition of waters, such as oceans, rivers, and lakes, as opposed to “ephemeral geographic features that are dry almost all of the year.”
 
The rule follows President Trump’s Executive Order 13778, which directed agencies to review the 2015 definition to see if it was consistent with keeping navigable waters free from pollution while promoting economic growth, minimizing regulatory uncertainty, and respecting the roles of Congress and the states under the U.S. Constitution.
 
Proposed rules are preliminary versions of a prospective federal agency regulation. If an agency determines that a new regulation is necessary, the agency develops a proposed rule for publication in the Federal Register. After a period of public comment, the agency may determine to revise the proposed rule, abandon the proposal, or move forward to the final rule stage of the rulemaking process.


CRA resolution would undo rule that expanded short-term health insurance plans

On February 6, 2019, a resolution was introduced in the U.S. House of Representatives to restrict the market for short-term, limited-duration health insurance plans. Under a rule, effective October 2, 2018, insurers were allowed to sell short-term, limited-duration plans with a maximum coverage period of fewer than 12 months. Before the new rule, those plans could only provide coverage that lasted less than three months.
 
According to the supplementary information published with the rule, short-term, limited-duration insurance is generally exempt from federal requirements because it is not considered to be individual health insurance coverage. The plans do not have to provide the essential health benefits specified by the Affordable Care Act and can refuse to cover preexisting conditions.
 
Rep. Kathy Castor (D-Fla.) introduced a resolution under the Congressional Review Act (CRA) that would undo the October 2018 rule. Her resolution would restore the under-three-month limit on those kinds of insurance plans.
 
Under the Congressional Review Act, the resolution would need to pass both houses of Congress and receive President Trump’s signature to repeal the rule.
 
The CRA is a federal law passed in 1996 creating a review period during which Congress, by passing a joint resolution of disapproval that is then signed by the president, can overturn a new federal agency rule.
 
Prior to 2017, the law was successfully used only once, to overturn a rule on ergonomics in the workplace in 2001. In the first four months of his administration, President Donald Trump (R) signed 14 CRA resolutions from Congress undoing a variety of rules issued near the end of Barack Obama’s (D) presidency. As of May 2018, the last time the CRA was successfully used, 16 rules have been repealed under President Trump.


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