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Borrello wins Republican primary in New York State Senate special election

The District 57 seat in the New York State Senate was up for special primary election on June 25. Austin Morgan (D) and George Borrello (R) advanced from the primary to the general election, which is scheduled for November 5. Morgan ran unopposed and won the Democratic nomination by default, while Borrello defeated Curtis Crandall with 63.7% of the unofficial election night vote in order to win the Republican nomination. The District 57 seat was vacated by Catharine Young (R), who stepped down on February 28, 2019, to take a leadership position at the Center of Excellence for Food and Agriculture at Cornell AgriTech. The candidate filing deadline passed on April 4.
As of June 26, 64 state legislative special elections have been scheduled or held in 24 states. This is the only state legislative special election currently on the ballot in New York this year. Between 2011 and 2018, an average of 77 special elections took place each year nationwide.
Entering the special election, the New York State Senate had 40 Democrats, 22 Republicans, and one vacancy. A majority in the chamber requires 32 seats. New York has a Democratic trifecta. A state government trifecta exists when one political party simultaneously holds the governor’s office and both state legislative chambers.

U.S. Supreme Court fails to resuscitate nondelegation doctrine

The Checks and Balances Letter delivers news and information from Ballotpedia’s Administrative State Project, including pivotal actions at the federal and state levels related to the separation of powers, due process and the rule of law.

This edition:

In this edition, we review the United States Supreme Court (SCOTUS) decision declining to uphold the nondelegation doctrine, a SCOTUS decision requiring notice-and-comment rulemaking for changes to Medicare policy, an effort to standardize cost-benefit analysis procedures at the Environmental Protection Agency, and two recent SCOTUS cases demonstrating the reluctance to apply Chevron deference.

At the state level, we highlight an Idaho proposal to simplify or retire roughly one-third of the state’s regulatory code, a new Michigan law that seeks to protect citizens against civil asset forfeiture, a ruling from the Texas Supreme Court aimed at protecting citizens’ due process rights in spite of agency misinformation, and the Texas governor’s executive order to prevent the expiration of the state’s plumbing regulations. As always, we wrap up with our Regulatory Tally, which features information about the 220 proposed rules and 264 final rules added to the Federal Register in May and OIRA’s regulatory review activity.

The Checks and Balances Letter

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In Washington

U.S. Supreme Court fails to resuscitate nondelegation doctrine; Alito concurrence, however, suggests a change in precedent might be forthcoming

  • What’s the story? In Gundy v. United States, the U.S. Supreme Court ruled 5-3 that the Sex Offender Registration and Notification Act (SORNA) did not violate the nondelegation doctrine, the constitutional principle forbidding Congress from delegating its legislative powers to the executive.
  • Justice Elena Kagan’s plurality opinion noted that the court has only declared delegations of authority unconstitutional twice in its history and that past courts have upheld broader delegations with less guidance from Congress. Justice Alito, however–who voted to uphold SORNA–wrote a separate opinion stating his willingness to reconsider how the court approaches future nondelegation doctrine challenges, suggesting changes in precedent might still be coming. Justice Kavanaugh did not vote on the case, which was heard before he joined the court.
  • Justice Gorsuch filed a dissenting opinion arguing that SORNA is unconstitutional because it gives the U.S. attorney general the power to write and enforce his own criminal code. He argued, “The Constitution promises that only the people’s elected representatives may adopt new federal laws restricting liberty. Yet the statute before us scrambles that design. It purports to endow the nation’s chief prosecutor with the power to write his own criminal code governing the lives of a half-million citizens. Yes, those affected are some of the least popular among us. But if a single executive branch official can write laws restricting the liberty of this group of persons, what does that mean for the next?”
  • Herman Gundy was convicted for failing to register as a sex offender under SORNA even though his offense occurred before SORNA passed. He argued that Congress improperly gave away legislative power to the attorney general when it allowed him to decide whether and how to apply SORNA to sex offenders who were convicted earlier.
  • The last time the U.S. Supreme Court found that Congress violated the nondelegation doctrine was in two 1935 cases involving the National Industrial Recovery Act passed during the New Deal.
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SCOTUS reins in HHS by requiring notice-and-comment rulemaking; declines to draw line between substantive and interpretive rules

  • What’s the story? The United States Supreme Court on June 3 declined to draw a defining line between substantive rules and interpretive rules in a 7-1 decision in Azar v. Allina Health Services. Instead, the court narrowly held that the Medicare Act requires the U.S. Department of Health and Human Services (HHS) to follow notice-and-comment rulemaking procedures when it makes substantive changes to Medicare policy, including substantive changes issued through interpretive rules.
  • Justice Brett Kavanaugh was recused from the case because he authored the appellate court opinion while serving on the United States Court of Appeals for the District of Columbia Circuit. Justice Stephen Breyer dissented.
  • A group of hospitals that provide healthcare to low-income Medicare patients and challenged HHS’ method of calculating the disproportionate share hospital adjustments for the 2012 fiscal year. These adjustments serve to increase reimbursement payments to hospitals that treat a disproportionately high number of low-income patients. The hospitals argued that the Medicare Act required HHS to provide “the public with notice and opportunity for comment” before changing the formula.
  • The district court ruled that HHS was not required to follow notice-and-comment rulemaking procedures because the formula change to calculate the 2012 adjustments was instituted through an interpretive rule, a type of agency guidance document. Unlike substantive rules, interpretive rules lack the force and effect of law. The district court held that the Medicare Act incorporated the Administrative Procedure Act’s (APA) exemption of interpretive rules from notice-and-comment rulemaking.
  • The United States Court of Appeals for the District of Columbia Circuit reversed the district court in finding that the Medicare Act does not except interpretive rules from notice-and-comment requirements.
  • In an opinion by Justice Neil Gorsuch, the United States Supreme Court affirmed the D.C. Circuit ruling, arguing that the Medicare statutes of 1987 require notice-and-comment rulemaking for changes to substantive legal standards, including those issued via interpretive rules.
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Cost-benefit analysis overhaul at EPA in response to Trump executive order

  • What’s the story? Environmental Protection Agency (EPA) Administrator Andrew Wheeler issued a memo on May 13 directing agency leadership to develop new rules standardizing the agency’s application of cost-benefit analysis in the rulemaking process.
  • The EPA is instituting the new rules in response to President Trump’s Executive Order 13777, which directed agencies to identify regulations with costs that exceed benefits. The memo lists the following guidelines for the new cost-benefit analysis rules:
  • The EPA should evaluate and consider both costs and benefits in regulatory decision-making.
  • The EPA should have consistent interpretations of key terms and concepts, such as “practical,” “appropriate,” “reasonable,” and “feasible.”
  • The EPA should explain the factors considered in a regulatory analysis and their role in shaping the regulatory outcome.
  • Analyses should follow best practices as well as sound economic and scientific principles.
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Recent SCOTUS cases avoid Chevron doctrine

  • What’s the story? The U.S. Supreme Court has not overturned the Chevron doctrine, but two recent cases demonstrate the court’s reluctance to apply it.
  • The court on May 20 rejected a petition to hear United Parcel Service v. Postal Regulatory Commission, a case in which the United Parcel Service challenged the appellate court’s application of Chevron deference to the Postal Regulatory Commission’s (PRC) method of setting postal rates.
  • In the court’s May 28 decision in Smith v. Berryhill, the justices unanimously rejected the argument that Chevron deference should apply when Congress gave no clear instructions about the availability of judicial review for those seeking disability benefits before the Social Security Administration. Justice Sonia Sotomayor stated in the opinion that the scope of judicial review “is hardly the kind of question that the Court presumes that Congress implicitly delegated to an agency.”
  • The Chevron doctrine—named for the 1984 United States Supreme Court decision in Chevron v. Natural Resources Defence Council—compels courts to defer to agencies’ reasonable interpretations of the unclear laws that they administer.
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In the States

Idaho governor proposes dramatic reductions to state regulatory code

  • What’s the story? Idaho Governor Brad Little (R) on May 21 proposed simplifying or allowing for the expiration of 139 full chapters and 79 partial chapters—roughly 34%—of the state’s regulatory code.
  • Idaho’s entire regulatory code was effectively repealed as of July 1 after the state legislature failed to reauthorize the 8,200 pages of rules.
  • Regulations in Idaho must be reauthorized each year, but lawmakers failed to do so by the end of the legislative session.
  • Little directed agencies to submit their regulations to the Division of Financial Management by May 10 for temporary approval in order for the rules to remain in effect until the legislature reconvenes in January.
  • Little’s proposal was open for public comment through June 11. Approved rules were published in the June 19 edition of the Idaho Administrative Bulletin, followed by a 21-day comment period.
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New Michigan law protects against civil asset forfeiture

  • What’s the story? Michigan Governor Gretchen Whitmer (D) signed a law on May 9 that prevents law enforcement from permanently keeping property under $50,000 acquired through civil asset forfeiture until the owner is convicted in a court of law.
  • Under civil asset forfeiture, law enforcement routinely seize cars, cash and other property as alleged proceeds of crime.
  • The new law aims to protect individuals’ property and due process rights against civil asset forfeiture and expedite the process for individuals seeking to recover seized property.
  • The law is the latest in a series of civil asset forfeiture reforms approved by Michigan lawmakers in recent years. Legislation passed in 2015 raised the standard of evidence for civil asset forfeiture and established transparency requirements. A 2016 bill repealed the bond requirements for individuals challenging forfeitures.
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Texas Supreme Court upholds due process in the face of agency misinformation

  • What’s the story? The Texas Supreme Court unanimously ruled on May 21 in Mosley v. Texas Health and Human Services Commission and Texas Department of Family and Protective Services that state agencies can’t provide erroneous information to citizens and later deny them due process after they follow the government’s inaccurate instructions.
  • The case concerned a decision by the Texas Department of Aging and Disability Services to add Patricia Mosley, a home health care provider, to the department’s Employee Misconduct Registry. Mosley challenged the decision but lost in a hearing before a state administrative law judge (ALJ).
  • The department sent Mosely a letter after the hearing instructing her to file a petition for judicial review in district court within 30 days in order to appeal the decision. The letter, however, failed to instruct Mosley to first file a motion for rehearing before seeking judicial review as required by statute. As a result, Mosley’s petition for judicial review was dismissed by the district and appellate courts for failing to first file a motion for rehearing.
  • The Texas Supreme Court disagreed, arguing that “the government can’t hold [Mosley] responsible for the consequences of its own ignorance.” The court ordered the department to reinstate Mosely’s case and allow her the opportunity for a rehearing.
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Texas governor issues executive order to extend plumbing oversight

  • What’s the story? Texas Governor Greg Abbott (R) issued an executive order on June 13 to continue the existence of the Texas Board of Plumbing Examiners and the state’s plumbing regulations through May 2021 without the need for a special legislative session.
  • Texas plumbers asked Abbott to call a special legislative session after the Texas State Legislature failed to approve sunset review legislation last month that would have continued regulatory oversight of plumbers in the state.
  • Lawmakers disagreed over the sunset bill’s proposal to move the responsibilities of the plumbing board under the Texas Department of Licensing and Regulation. Supporters of the bill argued that the move would improve efficiency, such as reducing the state’s eight-month processing period for issuing a plumbing license. Opponents claimed that the lengthy licensing period and other alleged inefficiencies of the plumbing board served to protect public health and safety in a specialized industry.
  • Without Abbott’s intervention, the legislative inaction would have resulted in the expiration of the state’s plumbing code on September 1, 2019, and the end of the plumbing board operations by September 2020.
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New study breaks down scope and impact of federal regulations

The Competitive Enterprise Institute (CEI) in May released a new issue of the Ten Thousand Commandments—the group’s annual report detailing the scope of federal regulatory activity and its economic impact. Below is a selection of the report’s conclusions:

The Pacific Legal Foundation provided the following summary of the report’s key findings:

  • “Each U.S. household’s estimated regulatory burden is at least $14,615 annually on average. That amounts to 20 percent of the average pre-tax household budget and exceeds every item in that budget, except housing.”
  • “In 2018, Washington bureaucrats issued regulations at a rate of 11 for every one law Congress enacted. The average for this “Unconstitutionality Index” for the past decade has been 28 to one. The five agencies issuing the most rules are the Departments of Commerce, Defense, Health and Human Services, Transportation, and the Treasury.”
  • “In the pipeline now, 67 federal departments, agencies, and commissions have 3,534 regulatory actions at various stages of implementation … according to the fall 2018 ‘Regulatory Plan and the Unified Agenda of Federal Regulatory and Deregulatory Actions.’”
  • “Of the 3,534 regulations in the Agenda’s pipeline, 174 are ‘economically significant’ rules, which the federal government describes as having annual economic effects of $100 million or more. Of those 174, 38 are deemed ‘deregulatory’ for purposes of E.O. 13,771.”

Click here to read the full report.

Regulatory Tally

Federal Register

  • The Federal Register in May reached 25,492 pages. The number of pages at the end of each May during the Obama administration (2009-2016) averaged 31,268 pages.
  • The Federal Register included 220 proposed rules and 264 final rules during May 2019. The regulations included new rules for Medicare Part D, an electronic signature option for U.S. Postal Service deliveries, and an increase in H-2B visas, among other rules.
  • Want to go deeper?

Office of Information and Regulatory Affairs (OIRA)

OIRA’s May regulatory review activity included:
  • Review of 36 significant regulatory actions. Between 2009-2016, the Obama administration reviewed an average of 46 significant regulatory actions each May.
  • Recommended changes to 34 proposed rules.
  • Agencies withdrew two rules from the review process.
  • As of June 2019, the OIRA website listed 113 regulatory actions under review.
Want to go deeper?

Biden, Sanders, and 8 other candidates take the stage in Miami

 Ballotpedia's Daily Presidential News Briefing

June 27, 2019: The second set of 10 Democratic presidential candidates take the debate stage in Miami. Donald Trump raised $36 million in the first week since he formally launched his re-election campaign. 

The second set of 10 Democratic presidential candidates will take the debate stageThursday night in Miami, Florida. José Diaz-Balart, Savannah Guthrie, Lester Holt, Rachel Maddow, and Chuck Todd will moderate the debate.

Tune in to NBC News, MSNBC, or Telemundo at 9 PM ET to watch the event live. You can also stream the debate via, the NBC News apps, Telemundo, or YouTube.

Notable Quote of the Day

“I think it’s the people who are worried about making it through the summer and being on the stage in the fall [with the most pressure]. It’s pretty clear that Sanders is going to be on the stage, and it’s pretty clear that Biden is going to be on the stage. I think if you’re Kamala or Warren, you’ve got to be like a really good rebounder in a basketball game. You’ve got to hang around the hoop, and you’ve got to get rebounds. I think [for] the folks that aren’t going to make the stage in September … they need to change the game for themselves so that they’re viable. They’re hoping just to make it until the early states [begin voting], and then it’s a totally different game.”

– Danny Diaz, 2016 Jeb Bush presidential campaign manager

Debate Highlights

  • Cory Booker said economic policy and gun regulations were not working in his community, which he described as low-income, black, and brown. He also discussed violence against transgender Americans.
  • Julián Castro advocated establishing a Marshall Plan for Honduras, Guatemala, and El Salvador. He also condemned the metering policy on migrants seeking asylum and said he would decriminalize illegal border crossings. 
  • Bill de Blasio criticized calls to keep private insurance as a healthcare option and shared his personal experiences as the son of a World War II veteran who took his own life and the father of a black son.
  • John Delaney opposed Medicare for All and said that Democrats should focus on lowering pharmaceutical prices, infrastructure, and job creation, rather than the Mueller report or impeachment proceedings.
  • Tulsi Gabbard said that nuclear war was the greatest threat to national security and called for the U.S. to return to a nuclear agreement with Iran. She also discussed her shift on LGBT policy, coming from a socially conservative household to serving alongside LGBT servicemembers.
  • Jay Inslee highlighted his executive experience in Washington, saying he was the only candidate who passed laws on abortion and health insurance. He also discussed climate change and his support for unions.
  • Amy Klobuchar responded to Inslee by saying there were “three women on this stage” who also fought for abortion. She discussed her electability, saying she had won districts in Minnesota that went for Trump by double digits.
  • Beto O’Rourke defended private insurance as a healthcare option and said pharmaceutical companies need to be held accountable for their connection to the opioid crisis.
  • Tim Ryan criticized General Motors for closing a facility Lordstown, Ohio, and manufacturing cars in Mexico after receiving a tax break. He also said the center of the Democratic Party needed to shift from “coastal and elitist and Ivy League” to “the forgotten communities.”
  • Elizabeth Warren joined de Blasio in being the only candidates on stage to support abolishing private health insurance. She also named climate change as the greatest threat to the United States.


  • Michael Bennet posted a clip on social media of his decade-long support for lifetime bans on members of Congress becoming lobbyists.
  • The Atlantic surveyed 23 Democratic candidates on whether they supported the Trans-Pacific Partnership. Joe Biden, who advocated for the agreement during the Obama administration, declined to say he would. Delaney was the only candidate to explicitly support the deal.
  • The New York Times profiled Steve Bullock’s campaign, describing his retail politics and messaging focus on electability and results in Montana.
  • In its podcast, The Washington Post reported on the evolution of Kirsten Gillibrand’s position on gun policy. 
  • Wayne Messam shared his impressions of the first presidential debate in an interview with NBC News.
  • Seth Moulton aired ads in Iowa, New Hampshire, Nevada, and South Carolina to introduce himself during and before coverage of the first Democratic primary debate.
  • Bernie Sanders posted an online ad to Facebook, Twitter, Instagram, and YouTube on the housing crisis in Reno, Nevada.
  • Joe Sestak spoke about disability policy at the Hiawatha Community Center.
  • Eric Swalwell tweeted about gun policy and his plan to “ban and buy back every single assault weapon” during the debate.
  • NowThis featured Marianne Williamson in its latest segment of “20 Questions for 2020” with campaign finance and climate crisis as topics.
  • Andrew Yang tweeted that he had reached 128,000 unique donors, nearing the 130,000-donor threshold to qualify for the third presidential debate.


  • Donald Trump raised $36 million in the first week since launching his re-election bid, including more than $24 million in the first 24 hours.

What We’re Reading

Flashback: June 27, 2015

Chris Christie launched his presidential campaign website. He formally announced his candidacy three days later.


First 10 Democratic candidates take the debate stage in Miami

Ballotpedia's Daily Presidential News Briefing

June 26, 2019: The first Democratic presidential primary debate of the 2020 election will take place in Miami, Florida. The Trump campaign is sending surrogates to battleground states to respond to the debate.


The first set of 10 Democratic presidential candidates will take the debate stageWednesday night in Miami, Florida. José Diaz-Balart, Savannah Guthrie, Lester Holt, Rachel Maddow, and Chuck Todd will moderate the debate.

Tune in to NBC News, MSNBC, or Telemundo at 9 PM ET to watch the event live. You can also stream the debate via, the NBC News apps, Telemundo, or YouTube.


Notable Quote of the Day

“What about the Puerto Rican vote? They’re not going to forget that this administration abandoned them during Maria. But they won’t be giving their vote away for free. What about the 72,000 Venezuelans who could benefit from TPS? … And I don’t see how we can have a debate in Miami and not talk about U.S.-Cuba policy.

Latinos are still seen as a monolith. Politicians as a whole still don’t get it, and that’s a problem.”

–  Liz Alarcon, Project Pulso director


  • The FEC’s second quarter fundraising deadline is June 30. Fundraising figures are key to qualifying for the next presidential debate and showing campaign health. Expect presidential candidates to make last-minute drives for donations and one-liner quips in the debates to repurpose for fundraising.
  • Michael Bennet discussed U.S.-China relations and his experience as a city school district superintendent and a member of the Gang of Eight bipartisan immigration group in an interview on WBUR’s Here & Now
  • The Washington Post reported on Joe Biden’s assets, including money earned from speaking engagements worth up to $200,000 each, a $2.7 million vacation home, and an $8 million book deal.
  • Bill de Blasio shared how he was preparing for the debate—mock sessions and question drills—along with several other 2020 presidential candidates in an NBC News article.
  • Cory Booker will attend a fundraiser hosted by New Jersey power brokers Joseph DiVincenzo and George Norcross Friday. The New York Times also interviewedBooker about his campaign.
  • Steve Bullock will participate in a locally televised town hall in Des Moines, Iowa, and take questions from online viewers. 
  • ABC News reported on Pete Buttigieg’s trips to Afghanistan and Iraq as a McKinsey consultant prior to his military deployment.
  • In an interview with Religion NewsJulián Castro spoke of his Catholic upbringing, the relationship between religion and policy, and hate crimes.
  • PredictIt is hosting a “shareholder call” with John Delaney about his presidential campaign.
  • Tulsi Gabbard is expected to focus on her opposition to regime change wars and conflict in the Middle East during the debate, according to a Hawaii Tribune-Heraldreport. 
  • The Mike Gravel campaign tweeted that Gravel needs two more polls to qualify for the second presidential debate.
  • Kamala Harris will introduce a bicameral version of the Accountability for Wall Street Executives Act, which would allow state law enforcement oversight of national banks regarding compliance with state law. Kirsten Gillibrand and Elizabeth Warren are also backing the bill.
  • John Hickenlooper discussed his debate strategy in an interview on CNN.
  • The Atlantic reported that Jay Inslee will expand his presidential campaign theme from climate change to his experience as a governor during the presidential debate. 
  • Amy Klobuchar is bringing Nicole Smith-Holt and Shelly Elkington—two Minnesota mothers who lost their adult children to insulin and opioids, respectively—to the first debate.
  • In an op-ed in FortuneWayne Messam wrote that campaign finance laws and inequitable media coverage affected his ability to qualify for the first presidential debate.
  • Seth Moulton will make several media appearances across Miami, including interviews on Fox News, MSNBC, and CNN.
  • In an interview with The RootBeto O’Rourke said that Americans need to better understand the history and repercussions of slavery before the government could consider reparations.
  • Tim Ryan discussed his shift on abortion policy in 2015 and gun policy after the 2012 Sandy Hook Elementary School shooting in an interview on CNN.
  • Bernie Sanders wrote an op-ed in Foreign Affairs, calling for the withdrawal of U.S. troops in Afghanistan and defining climate change and global inequality as security threats.
  • National Interest interviewed Joe Sestak about his foreign relations and military policy positions.
  • Eric Swalwell, along with 14 other candidates, has pledged to seek gender parityin his senior-level national security appointments.
  • Warren issued an election security policy to standardize federal election rules, mandate automatic voter registration, and ban election roll purges.
  • The Marianne Williamson campaign sent a press release Tuesday seeking to redefine the candidate as an author and activist rather than a spiritual guru or adviser to Oprah Winfrey.
  • Slate profiled Andrew Yang and his experience building a test prep company and the nonprofit Venture for America.


  • More than four dozen surrogates for Donald Trump will make media appearances in battleground state markets during and after the Democratic presidential primary debate. 
  • Bill Weld appeared in an interview on Concord News Radio in New Hampshire.

What We’re Reading

Flashback: June 26, 2015

The Supreme Court held that same-sex marriage was protected under the Due Process and Equal Protection Clauses of the Fourteenth Amendment. The 2016 presidential candidates reacted with tweets and public statements ranging from praise to condemnation.


Justice Department asks SCOTUS to consider equal protection claim in citizenship question case

The United States Department of Justice filed a request with the United States Supreme Court on June 25 asking the court to broaden the scope of Department of Commerce v. New York—a case challenging the addition of a citizenship question on the 2020 U.S. Census—in order to consider new equal protection claims.
Plaintiffs in a separate pending challenge to the citizenship question, La Union del Pueblo Entero v. Ross, raised equal protection claims under the Fifth Amendment in light of new information derived from a deceased Republican consultant’s hard drive. The information, according to plaintiffs, suggests that the citizenship question was added in order to gain a Republican electoral advantage. Commerce Secretary Wilbur Ross has stated that he approved the addition of the citizenship question to the 2020 census at the request of the U.S. Department of Justice (DOJ) in order to improve enforcement of the Voting Rights Act. 
Judge George Jarrod Hazel of the United States District Court for the District of Maryland, who ruled against the citizenship question in La Union del Pueblo Entero v. Ross on constitutional and procedural grounds, issued an order on June 19 stating that the new evidence could warrant reconsideration of the case. On June 25, a divided three-judge panel of the United States Court of Appeals for the Fourth Circuit remanded the case for reconsideration by Hazel.
The Justice Department responded to the Fourth Circuit’s decision by requesting that the United States Supreme Court also consider the equal protection claim in Department of Commerce v. New York, which challenges the citizenship question on constitutional and procedural grounds. “The Fourth Circuit’s order underscores the need for this Court to address the equal protection claim … so that the lawfulness of the Secretary’s decision can be fully and finally resolved,” wrote Solicitor General Noel Fransisco.
The United States Supreme Court is expected to issue a decision in Department of Commerce v. New York by the end of June. If the court chooses not to consider the equal protection claim, Hazel could issue an injunction against the citizenship question in La Union del Pueblo Entero v. Ross on equal protection grounds and return the citizenship question challenge before the high court.

Wisconsin Supreme Court rules against Superintendent of Public Instruction, affirming the legislature can control how agencies make rules

In Koschkee v. Taylor, the Supreme Court of Wisconsin ruled 4-2 that the DPI must submit new rules to the governor for approval before they go into effect, affirming the state REINS Act, which requires new rules be sent to the governor before they can go into effect. 
Governor Tony Evers (D), then the superintendent of public instruction, and the DPI were sued for allegedly violating the state REINS Act. Evers and DPI argued that the state superintendent is a constitutional office in Wisconsin not subject to gubernatorial control under the REINS Act. They also argued that the issue was already settled in the 2016 case Coyne v. Walker, which ruled that a 2011 law did not apply to the state superintendent. Koschkee v. Taylor overruled the Coyne decision and affirmed the constitutional power of the legislature to control how agencies make rules.
Signed into law in August 2017 by Governor Scott Walker (R), the REINS Act made changes to the regulatory process in Wisconsin. It requires state agencies to submit statements of scope for proposed regulations to the governor. Governors may then approve or reject an agency’s proposal.
Based on a proposed federal law of the same name, the Wisconsin REINS Act also requires legislative authorization of major rules and allows a Joint Committee for the Review of Administrative Rules to indefinitely suspend a proposed rule.

New special election for Iowa House District 46

A new state legislative special election has been added to our list. The special election is for the District 46 seat in the Iowa House of Representatives on August 6, 2019. There is no primary because major-party candidates will be nominated directly by the parties instead, and the filing deadline for independent and third-party candidates is on July 12.

Wisconsin Supreme Court rules legislature’s lame-duck session was constitutional

In a 4-3 decision, the Wisconsin Supreme Court ruled Friday that the state legislature’s December 2018 lame duck session was not unconstitutional. The League of Women Voters, plaintiffs in the case, had argued that the state’s constitution did not allow lawmakers to call an extraordinary session, making the December session and all actions resulting from it unconstitutional.
Judge Jessica Bradley authored the court’s majority opinion, stating: “We hold that extraordinary sessions do not violate the Wisconsin Constitution because the text of our constitution directs the Legislature to meet at times as ‘provided by law,’ and Wis. Stat. § 13.02(3) provides the law giving the Legislature the discretion to construct its work schedule, including preserving times for it to meet in an extraordinary session.”
Judge Rebecca Dallet wrote a dissenting opinion: “The Legislature’s ability to determine the rules of its proceedings pursuant to Article IV, Section 8 does not swallow up the meeting requirements of Article IV, Section 11 or allow it to wield unbridled power.”
During the December 2018 session, Wisconsin lawmakers voted to limit the ability of the governor to remove Wisconsin from a multi-state lawsuit to challenge the Affordable Care Act, limit early voting in Wisconsin, and give more power over the Wisconsin Economic Development Corporation to state lawmakers.
Wisconsin Gov. Tony Evers (D) responded to the ruling: “The state constitution is clear. It limits when the legislature can meet to pass laws. Our framers knew that no good comes from lawmakers rushing laws through at the last minute without public scrutiny. The lame-duck session proves the framers were right. This was an attack on the will of the people, our democracy, and our system of government.”
Assembly Speaker Robin Vos and Senate Majority Leader Scott Fitzgerald called the decision “common sense.” “The Court upheld a previously non-controversial legislative practice used by both parties for decades to enact some of the most important laws in the state,” they wrote.

16 candidates file to run in St. Petersburg city council races

Sixteen candidates have filed to run for four city council seats in St. Petersburg, Florida. A primary is scheduled for August 27, and the general election is on November 5. The filing deadline for this election was June 21.
District 1 incumbent Charlie Gerdes and District 5 incumbent Steve Kornell are both ineligible to run for re-election due to term limits. City council members serve four-year terms and are limited to two consecutive terms (eight years) in office.
Three candidates—Scott Orsini, Robert G. Blackmon, and John Hornbeck—have filed to run for the open seat in District 1. District 3 incumbent John “Ed” Montanari is running for re-election against Orlando A. Acosta and Zachary James Collins. In the open seat in District 5, six candidates—Anthony Cates, Philip Garrett, Deborah Figgs-Sanders, Trenia Cox, Beth Connor, and Anne Lenholt Hirsch—have filed to run. District 7 incumbent Lisa Wheeler-Bowman faces three challengers in her re-election bid. She will face Eritha Brandis Cainion, Chico Cromartie, and Sarah Elizabeth Moore in the primary.
St. Petersburg is the fifth-largest city in Florida and the 77th-largest city in the U.S. by population. In 2019, Ballotpedia is covering elections in 59 of America’s 100 largest cities by population.

Second veto referendum effort filed targeting provisions of Oregon HB 3427, the Student Success Act

Two referendum petitions have been filed targeting House Bill 3427, referred to as the Student Success Act, which was signed into law on May 16, 2019.
HB 3427 was designed to establish the Fund for Student Success and allocate funding to education purposes including the following:
  • the creation of a grant program in the state’s Student Investment Account with funds to be spent on increased learning time, decreased class sizes, and improvements to students’ education, healthy, and safety;
  • the expansion of access to free meals at school; and
  • the creation of a program for students who have left high school to re-enter and complete high school.
The bill establishes a 0.57% tax (corporate activity tax) on businesses that have more than a million dollars in Oregon sales and reduces personal income tax rates for the lowest three tax brackets by subtracting 0.25% from the rates.
The first referendum, #301, seeks to overturn provisions of HB 3427 that levy a 0.57% tax (corporate activity tax) on businesses that have more than a million dollars in Oregon sales with revenue to be used to fund the Fund for Student Success. Defeat the Tax on Oregon Sales is leading the veto referendum effort. Our Oregon is leading the campaign against the referendum effort in order to preserve HB 3427 provisions.
Oregon Senator Alan Olsen (R-20), who opposes the corporate activity tax and supports the referendum effort, argued, “The funds from the gross receipts tax are not dedicated to funding K-12 education by constitutional amendment, meaning the Democratic majority can spend it however they choose. Because it’s a statutory law, it is not guaranteed to education or K-12 programs like the Democrats have promised. Additionally, this tax will absolutely devastate Oregonians with fixed incomes, such as the poor and elderly – the very populations Democrats claim to represent – because consumers are paying for the sales tax every time something is purchased.”
Our Oregon argued, “Special interests have filed an attempt to send the Student Success Act to the ballot, jeopardizing a historic $2 billion investment in Oregon students. These dedicated investments mean smaller class sizes, more mental health resources, restored art, music, PE, and career training classes, and increased access to early education programs. The Student Success Act also delivers hundreds of millions in personal income tax relief for families across the state.”
The second referendum, #302, seeks to overturn Section 67 of HB 3427, which would prohibit cities, counties, or other local political subdivisions from imposing taxes on commercial activities or grocery sales.
74,680 valid signatures are due for each measure 90 days after the legislature adjourns its 2019 session. The legislature is set to adjourn at the end of June.
In the 112-year period between 1906 and 2018, 68 veto referendum measures have appeared on the ballot in Oregon. Veto referendums resulted in the targeted law being overturned in 44 of 68 cases for a veto referendum success rate of 64.7%. The targeted law was upheld in 24 of 68 veto referendum elections (35.3%).
The states that have had the most veto referendums are North Dakota (75), Oregon (68), and California (48).
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