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Baird and Lamm advance in open-seat Nebraska mayoral primary

A nonpartisan primary for mayor of Lincoln, Nebraska, was held on Tuesday. Candidates Leirion Gaylor Baird and Cyndi Lamm advanced to the general election after defeating Jeff Kirkpatrick, Krystal Gabel, and Rene Solc. The filing deadline was March 7, and the general election is on May 7. The city’s current mayor, Chris Beutler (D), was first elected in 2007 and could not seek re-election due to term limits.
 
Although candidates had the option to file with political parties, city elections are nonpartisan and political parties do not appear on the ballot. Baird filed as a Democratic candidate and received 43.5 percent of the vote according to unofficial election night results, while Lamm filed as a Republican and received 33.5 percent of the vote. Kirkpatrick, the third-place finisher with 18.8 percent of the vote, also filed as a Democrat. Gabel and Solc both filed as nonpartisan candidates.
 
Lincoln is the second-largest city in Nebraska and the 71st-largest city in the U.S. by population.
 


94 state legislative seats have flipped in special elections since 2010

Ninety-four state legislative seats have changed partisan control, or flipped, in special elections since 2010. Democrats have won 51 of these special elections, Republicans have won 37, and independent and third-party candidates have won six.
 
So far, six partisan flips have occurred in 2019—four Republican wins, one Democratic win, and one independent win.
 
The year with most flips was 2017 when 17 seats (14 Democratic wins and three Republican wins) changed party control. There were 16 flips in 2018—12 Democratic wins and four Republican wins—and 15 flips in 2015—five Democratic wins, eight Republican wins, and two third-party wins.
 
2017 and 2018 saw the largest net partisan gains in state legislative special elections as Democrats picked up 11 seats and eight seats, respectively. The largest net partisan gain favoring Republicans occurred in 2013 when they picked up five seats.
 
The states with the most flipped seats are New Hampshire and Connecticut. There have been 10 flips in New Hampshire—nine Democratic wins and one Republican win. Five of the Democratic flips in New Hampshire occurred in 2017 and 2018.
 
Connecticut has seen nine flips—one Democratic win, seven Republican wins, and one third-party win. So far in 2019, one Connecticut House seat and one Connecticut Senate seat have flipped from Democratic to Republican control.
 
About two-thirds of state legislative flips in special elections have occurred in state house seats rather than state senate seats. Since 2010, there have been 62 flips in state house seats (66.0 percent of total) and 32 flips in state senate seats (34.0 percent).
 
Additional reading:


Recall targeting Colorado lawmaker approved for circulation

The Colorado Secretary of State approved a recall petition for circulation against state Rep. Rochelle Galindo (D) on April 4. Recall supporters have until June 3, 2019, to collect 5,696 signatures to force a recall election.
 
According to the recall supporters, Galindo is being targeted for recall because of her support for an oil and gas regulation bill and a gun bill. The gun bill would temporarily remove guns from people who are deemed a threat to themselves or others. Other reasons for the recall are due to Galindo’s support of legislation related to the national popular vote and sex education.
 
Galindo was elected to District 50 in the state House in 2018. She defeated Michael Thuener (R) in the general election with 54.4 percent of the vote. Prior to the 2018 election, Colorado Treasurer Dave Young (D) held the seat from 2011 to 2019.
 
After the recall petition was approved, Rep. Galindo said, “People are free to disagree with the decisions I make at the state capitol, and they’re free to vote for someone else in 2020. I will fight every day for our community and our shared best interests, and even for the people who disagree with me.”
 
Recall efforts have also been started in Colorado against state Sen. Jeff Bridges (D) and state Rep. Meg Froelich (D). Rep. Tony Exum (D) and Senate President Leroy Garcia (D) have also been discussed as possible recall targets. Gov. Jared Polis (D) is the target of a recall effort, but he must be in office for six months before an official recall can begin.
 
Since 2011, 76 recall petitions have been filed against state lawmakers. Nine recalls were successful, nine were defeated at the ballot, 54 did not go to a vote, and four are still ongoing. California state Sen. Josh Newman (D) was recalled in 2018. Two Colorado state senators were successfully recalled in 2013.
 
Colorado became a Democratic trifecta in 2019 after Democrats flipped the state Senate in the 2018 election. A state government trifecta exists when one political party simultaneously holds the governor’s office and both state legislative chambers. Democrats control the state House by a 41-24 margin and the state Senate by a 19-16 margin. Gov. Jared Polis (D) was sworn into the governor’s office in 2019.
 


Georgia to hold third consecutive election for state House seat after two cancellations

Both Florida and Georgia have state legislative special primaries on the ballot on April 9.
 
In Georgia, Chris Erwin and Dan Gasaway are running in a Republican primary for the state House’s District 28 seat. The special election will be the third contest between Gasaway and Erwin. The regularly scheduled primary on May 22, 2018, was deemed inconclusive due to ballot errors, so a new primary took place on December 4, 2018. The results of the December 2018 special election were also deemed inconclusive, so a judge ruled that another new election should be held.
 
Because the special primary election is being held to rectify the results of the original primary, and because no Democratic candidates filed to run in 2018, the winner of the April 9 primary will be declared the winner of the seat outright.
 
Gasaway held the seat from 2013 to 2019. After Erwin was declared the winner of the special primary in December 2018, he was sworn in on January 14. On February 8, a judge determined that Erwin was no longer a member of the state House.
 
In Florida, special primaries are being held on April 9 for three state House seats. General elections will take place on June 18.
  • In District 7, Lynda Bell, Virginia Fuller, Jason Shoaf, and Mike Watkins are running in the Republican primary. Ryan Terrell is running unopposed in the Democratic primary. The seat became vacant after Halsey Beshears (R) resigned on January 11, 2019, to become the Secretary of the Department of Business and Professional Regulation.
  • In District 38, Randy Maggard and David McCallister are running in the Republican primary. Kelly Smith is running unopposed in the Democratic primary. The seat became vacant after Daniel Burgess (R) was appointed as the Executive Director of the Department of Veterans’ Affairs on January 24, 2019.
  • In District 97, Dan Daley is running unopposed in the Democratic primary. No Republican candidates filed to run for election. The seat became vacant after Jared Moskowitz (D) resigned in January 2019 to become the Director of the Florida Division of Emergency Management.
In 2019, there have been 52 state legislative special elections scheduled or held so far in 20 states. Between 2011 and 2018, an average of 77 special elections took place each year.
 


43 states prohibit abortion at specific stages of pregnancy

A total of 43 states prohibit abortions beginning at specific stages of pregnancy. This includes 17 states that prohibit abortions beginning at the stage of fetal viability and 15 states that prohibit abortions beginning at 20 weeks post-fertilization. Seven states do not prohibit abortions in any form.
 
Two abortion-related ballot measures passed in 2018: Alabama Amendment 2 and West Virginia Amendment 1.
 
Alabama Amendment 2 amended the state constitution, declaring that the state’s policy is to support “the sanctity of unborn life and the rights of unborn children, including the right to life.” This amendment was cited in a February 2019 wrongful death lawsuit. A county probate judge ruled that an Alabama resident could file a lawsuit on behalf of an unborn fetus given that a fetus was defined by the Alabama Constitution as a person with legal rights.
 
West Virginia Amendment 1 amended the state constitution to declare that “nothing in this Constitution secures or protects a right to abortion or requires the funding of abortion.” This same language was also used in Alabama’s amendment.
 
Alabama Amendment 2 and West Virginia Amendment 1 were referred to the ballot by the state legislatures. Also in 2018, Oregon voters defeated a citizen initiative that would have prohibited public funds from being spent on abortions in Oregon, except when determined to be medically necessary or required by federal law.
 
The Alabama and West Virginia measures both followed language initially used in an approved 2014 measure: Tennessee Amendment 1. Two abortion-related measures with different proposed constitutional language were rejected in Colorado and North Dakota, respectively. The Colorado measure would have included unborn human beings under the definition of person and child in the Colorado criminal code. The North Dakota measure would have added language to the state constitution guaranteeing a right to life at every stage of human development.
 


Federal Register weekly update; highest weekly total of presidential documents in 2019

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.
 
During the week of April 1 to April 5, the number of pages in the Federal Register increased by 1,748 pages, bringing the year-to-date total to 13,794 pages. This week’s Federal Register featured a total of 604 documents, including 452 notices, 12 presidential documents, 57 proposed rules, and 83 final rules.
 
One proposed rules, three final rules, and one notice were deemed significant under E.O. 12866—meaning that they may 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.
 
During the same week in 2018, the number of pages in the Federal Register increased by 1,394 pages. As of April 5, the 2019 total trailed the 2018 total by 1,224 pages.
 
The Trump administration has added an average of 985 pages to the Federal Register each week in 2019 as of April 5. In 2018, the Trump administration added an average of 1,301 pages to the Federal Register each week. Over the course of the Obama administration, the Federal Register increased by an average of 1,658 pages per week.
 
According to government data, the Federal Register hit an all-time high of 95,894 pages in 2016.
 
Additional reading:
Click here to find yearly information about additions to the Federal Register from 1936 to 2016: https://ballotpedia.org/Historical_additions_to_the_Federal_Register,_1936-2016


SCOTUS rejects a challenge to expert testimony

Biestek v. Berryhill asked whether agency experts must provide data supporting their testimony during benefits hearings. On April 1st, the U.S. Supreme Court ruled, “not categorically.” The court held that reviewing courts could uphold agency decisions even when experts withhold requested data.
 
Justice Elena Kagan, writing for a 6-3 majority, argued that a blanket rule against experts refusing to reveal data used to support their conclusions would be too broad. She held that reviewing courts should adopt a case-by-case approach. Justice Neil Gorsuch, in a dissent joined by Justice Ruth Bader Ginsburg, argued that agency experts should provide support for their allegations when asked.
 
When the Social Security Administration (SSA) decides whether to award disability benefits to applicants, it follows an informal adjudication process laid out in the Social Security Act of 1935. SSA administrative law judges (ALJs) conduct hearings to determine whether the agency should accept or reject disability claims. If someone challenges an SSA benefits decision in court, judges will uphold the agency’s factual determinations if a reasonable person would accept that the supporting evidence was adequate.
 
Courts reviewing factual determinations made by the SSA have to make sure the agency based its decisions on substantial evidence. Court precedent defines substantial evidence as that which a reasonable mind would accept as supporting a conclusion.
 
In this case, Michael Biestek went before an SSA ALJ for a hearing to see if there was any work he could perform with his disabilities. A vocational expert working for the SSA testified that there were hundreds of thousands of jobs available for someone like Biestek. The ALJ did not require the expert to share the surveys she used to make her assessment when Biestek’s lawyer asked to see them. Based on the expert testimony, the ALJ rejected part of Biestek’s disability application. Biestek challenged the partial denial of benefits, saying that the expert’s refusal to share her data meant that her testimony fell short of the substantial evidence standard.
 
Justice Kagan held that expert testimony alone is usually enough to qualify as substantial evidence. She did not support rejecting expert testimony in all cases where the agency expert refuses to divulge the underlying data. Justice Sonia Sotomayor wrote a dissenting opinion, arguing that the SSA had the burden of proof to show that Biestek had work opportunities. Justice Gorsuch wrote a separate dissenting opinion, arguing that “The principle that the government must support its allegations with substantial evidence, not conclusions and secret evidence, guards against arbitrary executive decisionmaking [….] Without it, people like Mr. Biestek are left to the mercy of a bureaucrat’s caprice.”
 


South Dakota governor makes first appointment to state supreme court

Governor Kristi Noem (R) appointed Patricia DeVaney to the South Dakota Supreme Court on April 4, 2019. Noem selected DeVaney to succeed Justice Steven Zinter, who died on October 30, 2018. DeVaney was Noem’s first appointment to the five-member court.
 
Under South Dakota law, state supreme court justices are appointed by the governor from a list provided by the South Dakota Judicial Qualifications Commission. The South Dakota Judicial Qualifications Commission is composed of seven members—two circuit court judges elected by judicial conference, three attorneys appointed by a majority of the state bar, and two citizens appointed by the governor. The attorneys must not all be from the same political party. Likewise, the governor cannot appoint individuals to the commission from the same political party.
 
Newly appointed justices serve for at least three years, after which they must run in a yes-no retention election during a regularly scheduled general election. Subsequent terms last eight years.
 
DeVaney graduated summa cum laude from the University of South Dakota in 1990. She earned her J.D. from the University of Virginia. DeVaney worked as an assistant attorney general in the Attorney General’s Office from 1993 to 2012. Gov. Dennis Daugaard (R) appointed DeVaney to the Sixth Judicial Circuit of South Dakota in 2012.
 


From 30 hours to 2 – what you need to know about the nuclear option change this week

Earlier this week Republican leaders in the Senate used a procedural tactic known as the nuclear option to change the process for confirming judicial nominees. This is the third time the procedural tactic has been used since 2013.

Republicans cheered the change while Democrats have been critical of the tactic. But aside from the partisan mudslinging, what are the facts about this change? What will the new rules mean, and what is the data behind how we got here? What exactly happened with the nuclear option and how are Senate leaders reacting? How will this affect President Trump’s ability to fill vacancies in the federal judiciary?

Ballotpedia has answers to these questions and more below.

What happened?

On Wednesday, the Senate voted 51-48 to reduce post-cloture debate on federal district court nominees from 30 hours to two hours (circuit court judges and Supreme Court justices still have 30 hour limits). The Senate made the same change for executive branch nominees below the Cabinet level.

The two hour period begins after the Senate votes to invoke cloture—the process in which senators agree to end debate and bring a nomination or legislative act to a final vote. Cloture is often invoked to end procedural delay commonly known as a filibuster. It takes 51 votes to invoke cloture on a presidential nominee and 60 votes to invoke cloture on legislation.

What is the difference between a federal district court and a circuit court?

Federal district courts are the first level of the federal court system. Most federal criminal and civil cases originate in district courts. There are 94 district courts nationwide, with each state having between one and four associated district courts. There are 677 federal judge positions in the district court system.

Circuit courts are the intermediate appellate level of the federal court system, falling in between district courts and the Supreme Court. There are 13 circuit courts, including 11 numbered circuits which each handle appeals originating in a particular group of states. A 12th court handles appeals originating in the District of Columbia. The Court of Appeals for the Federal Circuit handles appeals which deal with specific subject areas. There are 179 federal judge positions in the circuit court system.

What does the nuclear option actually mean?

To enact this change, Senate Republicans used a parliamentary tactic known as the nuclear option: a procedure that allows the majority party to change a Senate precedent with a simple majority vote. Without the nuclear option, changing the Senate’s standing rules requires a two-thirds vote. On Tuesday, Republicans tried to pass the change in the form of a standing resolution, but they did not receive the required 60 votes. The term nuclear option was first coined in 2003 by Sen. Trent Lott (R-Miss.).

To deploy the nuclear option, Senate Majority Leader Mitch McConnell (R-Ky.) raised a point of order during the consideration of Roy Altman to serve on the U.S. District Court for the Southern District of Florida. His point of order stated that debate should be limited to two hours after cloture is invoked on a judicial nominee. After the presiding officer of the Senate ruled against McConnell’s point of order, 51 Senate Republicans–all except Susan Collins (R-Me.) and Mike Lee (R-Ut.)–voted to overrule the chair’s decision.

This was the third time the Senate has used the nuclear option to change Senate precedent for presidential nominations since 2013. Here are the other two:

  • 2013: Senate Majority Leader Harry Reid (D-Nev.) changed the threshold for invoking cloture for all presidential nominees except Supreme Court justices from 60 votes to 51 votes.

  • 2017: McConnell reduced the cloture threshold for Supreme Court nominees from 60 votes to 51 votes when the Senate was considering Neil Gorsuch’s nomination.

Who was the first judge to be confirmed under the new precedent?

Altman was the first judge to be confirmed under the new precedent. Altman is the first Trump judicial nominee to the U.S. District Court for the Southern District of Florida and brings its composition to seven Republican-appointed judges and seven Democratic-appointed judges. There are four other vacancies on the bench. Two Trump nominees who, like Altman, were nominated on May 7, 2018—Rodolfo Ruiz and Rodney Smith—are awaiting confirmation.

How many judges are awaiting confirmation?

Seventy-five of President Trump’s judicial nominees have yet to be confirmed. This figure includes 49 nominees who have been approved by the Judiciary Committee and are awaiting only a vote before the full Senate as well as 26 nominees who have yet to appear before the committee.

Of the 75 judicial nominees awaiting confirmation, 56 are nominees to district courts. Thirty-nine of those district court nominees are only awaiting a vote before the full Senate. Thirty-one of the 39 district court nominees were nominated more than six months ago. Seventeen were nominated in April 2018 or earlier.

Over the course of the Trump administration, the highest number of concurrent judicial vacancies occurred in August 2018, when there were 158 vacant judicial seats. The lowest number of concurrent vacancies was in February 2017, when 117 federal judgeships were vacant.

How many district court judges have been nominated to the federal judiciary?

Judge Altman is the 54th Trump nominee to have been confirmed to a District Court by the U.S. Senate. The District Courts with the most Trump appointees are the U.S. District Courts for the Western Districts of Pennsylvania and of Texas, which each have three Trump appointees.

Between 1933 and 2017, the average rate of successful District Court nominations was 27.4 per year. This has increased in recent years, with Bill Clinton (D) averaging 38.1 per year, George W. Bush (R) averaging 32.6 per year, and Barack Obama (D) averaging 33.5 per year. President Trump’s 54 appointments put him at an approximate rate of 24 per year.

What are the longest/oldest vacancies right now?

Judge Malcolm Howard’s seat on the U.S. District Court for the Eastern District of North Carolina has been vacant the longest. Howard retired from full-time service, assuming senior status, on December 31, 2005—a 13-year vacancy. There is no pending nominee for this seat.

The second-longest vacancy is on the U.S. District Court for the Southern District of Texas. Judge Janis Jack vacated the seat on June 1, 2011, when she assumed senior status. President Trump nominated David Morales to fill this seat on April 12, 2018. Morales is currently awaiting a vote in the U.S. Senate.

Which of President Trump’s nominations have been waiting the longest?

Of the 49 Trump nominees who have passed through the Senate Judiciary Committee and are awaiting a vote before the full Senate, four were nominated in 2017, 27 were nominated in the first six months of 2018, 12 were nominated in the latter six months of 2018, and six were nominated in 2019.

The four nominees who began the process in 2017 are Matthew Kacsmaryk (U.S. District Court for the Northern District of Texas), Ryan Holte (U.S. Court of Federal Claims), Howard Nielson (U.S. District Court for the District of Utah), and Daniel Domenico (U.S. District Court of the District of Colorado).

With the nuclear option in place, how fast will nominees be confirmed?

So how did the 30-hour post-cloture debate play out in practice? According to a CRS report last updated in 2017, “The time used in debate is counted against the 30 hours, but so too is the time consumed by quorum calls, roll call votes, parliamentary inquiries, and all other proceedings that occur while the matter under cloture is pending before the Senate.”

The report also noted that, under some circumstances, “the Senate may agree by unanimous consent that the 30 hours be considered to run continuously, even when the Senate is not actively considering the measure or even does not remain in session.”

Before the precedent changed, Adam Jentleson, a former Harry Reid staffer, wrote in a Washington Post op-ed that Senate Democrats could drag out judicial confirmations to four days using the cloture process. George Washington University political scientist Sarah Binder found that the median time spent in post-cloture debate was 22 hours for judicial nominations from 2017 to 2018.

University of Georgia political scientist Tony Madonna expects the four-day confirmation period mentioned by Jentleson to decrease under the new precedent (although this could be affected by whether there is an even split in debate time between Democrats and Republicans). Madonna said it is unclear how much this change will affect the federal judiciary’s vacancy rate because some of the delay comes during the executive branch’s vetting process and before the nominations reach the Senate.

What are people saying about it?

  • Senate Majority Leader Mitch McConnell (R-Ky.) said Senate Democrats were taking advantage of the 30-hour period to delay President Donald Trump’s nominees. In an April 1 op-ed, McConnell wrote, “The all-encompassing, systematic nature of this obstruction is not part of the Senate’s important tradition of minority rights. It is a new departure from that tradition. And this break with tradition is hurting the Senate, hamstringing our duly elected president, and denying citizens the government they elected.”

  • Senate Minority Leader Chuck Schumer (D-N.Y.) criticized the change. He said, “Two hours for a lifetime appointment is unacceptable. Two hours for a lifetime appointment with huge influence on people’s lives is unacceptable. It’s ridiculous.”

  • Sen. Joe Manchin (D-W.V) said, “This rule today, this change, and the two that came before it in 2013 and 2017, were not meant to make this place more efficient. They were meant to take power from each and every senator.”

  • Sen. Steve Daines (R-Mt.) said, “What we’re debating here are rules that were never part of the Constitution. The Senate gets to define the rules, and the Senate can change its rules. It is a good healthy debate, and I don’t think you’re going to see a legislative filibuster change in this Congress.”

So, to summarize, here are five things you need to know:

  1. Senate Republicans used the nuclear option to shorten the amount of time that can be spent debating judicial nominees after cloture has been invoked from 30 hours to two hours. The change covers district court nominees and does not apply to circuit court or Supreme Court nominees. Federal district courts are the first level of the federal court system, while the circuit courts and the Supreme Court generally handle appeals from district courts.

  2. This was the third time the Senate has changed Senate precedent using the nuclear option since 2013. In the other two instances, the Senate worked to reduce the cloture threshold for all presidential nominees, including Supreme Court nominees, from 60 votes to 51 votes.

  3. Judge Roy Altman was the first judge confirmed under the new post-cloture debate rules. He will serve as a District Court judge in Florida.

  4. The Senate has confirmed 54 of Trump’s district court nominees so far. Fifty-six more await confirmation, including 39 who only need a vote in the full Senate. Thirty-one of the 39 were nominated more than six months ago.

  5. Political scientist Tony Madonna told Ballotpedia that the maximum period between invoking cloture on a judicial nominee and confirming that nominee will likely be reduced under the new precedent. He said the likely effects of the debate changes on the federal judiciary vacancy rate are unclear because much of the delay comes during the executive branch’s vetting process.

 

This analysis was authored by David Luchs, Rob Oldham, and Sara Reynolds.



Former Arizona Sen. Steve Pierce chosen to fill Arizona House vacancy

The Yavapai County Board of Supervisors chose former Arizona Sen. Steve Pierce (R) on April 3 to replace Rep. David Stringer (R) in the Arizona House of Representatives. Stringer resigned on March 27 amid an ethics investigation.
 
Prior to being chosen for Stringer’s seat, Pierce served in the Arizona State Senate from 2009 to 2017. He also previously served as the chairman for the Yavapai County Republican Party.
 
The Arizona House of Representatives currently has a 31-29 Republican majority, which was unchanged with Pierce’s appointment. Republicans also hold trifecta status in Arizona, meaning the party holds the governor’s office as well as a majority in both chambers of the state legislature.
 
If there is a vacancy in the Arizona State Legislature, the board of county supervisors must select a replacement. The political party committee is involved in the appointment process only if the legislative district has 30 or more elected precinct committeemen.
 


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