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Federal judge expresses concern over constitutionality of ALJ proceedings

Judge John McBryde of the U.S. District Court for the Northern District of Texas expressed concern on Tuesday in his opinion in Cochran v. SEC over the constitutionality of the administrative law judges (ALJs) at the Securities and Exchange Commission (SEC).
The plaintiff, Michelle Cochran, appealed an adverse decision from an SEC ALJ in 2017, but further action on her appeal was stalled as Lucia v. SEC moved through the federal courts. The Lucia case challenged the constitutionality of the SEC’s ALJ appointment process. The United States Supreme Court ultimately ruled in June 2018 the agency’s ALJ appointments violated the U.S. Constitution’s Appointments Clause. Following the Lucia decision, Cochran’s case was reassigned to new proceedings before a different, constitutionally-appointed ALJ.
Cochran filed for injunctive relief against the agency proceedings in district court, claiming that the SEC’s ALJs remained unconstitutionally appointed despite ratification by the agency’s commissioners. Cochran argued that the SEC’s ALJs have double for-cause removal protections, which unconstitutionally insulate them from direct removal by the president.
McBryde dismissed the case due to the court’s lack of subject matter jurisdiction. However, he expressed concern over the constitutionality of the SEC’s ALJs in his opinion, stating, “The court is deeply concerned with the fact that plaintiff has been subjected to extensive proceedings before an ALJ who was not constitutionally appointed and contends that the one she must now face for further, undoubtedly extended, proceedings likewise is unconstitutionally appointed.”
The New Civil Liberties Alliance, a pro bono law firm with a focus on the administrative state, plans to appeal Cochran’s case to the United States Court of Appeals for the Fifth Circuit.
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Louisiana holding three state House special elections on Saturday

Special general elections are being held for three seats in the Louisiana House of Representatives on March 30.
  • In District 17, Rodney McFarland Sr. (D) and Pat Moore (D) are facing off. The seat became vacant after Marcus Hunter (D) was elected to serve as a judge on the Fourth Judicial District. Hunter had represented District 17 beginning in 2012. He won re-election in 2015, winning outright in the primary with 62.0 percent of the vote.
  • In District 18, Jeremy LaCombe (D) and Tammi Fabre (R) are facing off. The seat became vacant after Major Thibaut (D) won election to serve as the president of Pointe Coupee Parish. Thibaut had represented District 18 beginning in 2008. He ran unopposed in his re-election campaigns in 2011 and 2015.
  • In District 62, Dennis Aucoin (R) and Roy Adams (I) are facing off. The seat became vacant after Kenny Havard (R) won election to serve as president of West Feliciana Parish. Havard had represented District 62 beginning in 2012. He won re-election in 2015, winning outright in the primary with 60.6 percent of the vote.
Special primary elections were also held on February 23 in District 12, District 26, District 27, and District 47. Each of those districts were won outright in the primary. In Louisiana, all candidates, regardless of party affiliation, face off in the primary election. If a candidate receives at least 50 percent of the vote in the primary election, he or she wins outright. If no candidate reaches that threshold, a general election is held between the top two vote recipients.
Prior to these special general elections, the Louisiana House of Representatives has 37 Democrats, 62 Republicans, three independents, and three vacancies. Louisiana has a divided government, and no political party holds a state government trifecta. A trifecta exists when one political party simultaneously holds the governor’s office and majorities in both state legislative chambers.
In 2019, there have been 51 state legislative special elections scheduled or held so far in 19 states. Between 2011 and 2018, an average of 77 special elections took place each year.

Miami will host first set of Democratic presidential primary debates in June

The Democratic National Committee announced on March 28 that the first set of Democratic primary debates will be held in Miami, Florida, on June 26 and 27. The debates will be broadcast by NBC News, MSNBC, and Telemundo.
A candidate can qualify for these debates by polling performance or fundraising from individual donors. Under the first option, a candidate must receive 1 percent support or more in three national or early state polls from a select list of organizations and institutions. Under the second option, a candidate must receive donations from at least 65,000 unique individual donors. Additionally, they must have a minimum of 200 unique donors per state in at least 20 states.
No more than 20 candidates—10 candidates on stage each night—will be able to participate.
Wayne Messam, the mayor of Miramar, Florida, brought the number of notable Democratic candidates in the race to 16 on March 28. He formally announced that he was running for president, having launched a presidential exploratory committee two weeks ago.

U.S. Supreme Court rejects requests to pause ATF rule banning bump stocks

A new rule banning bump stocks will remain in force while critics challenge it in court. The U.S. Supreme Court rejected two requests to pause the ban while lower courts decide pending cases. The Bureau of Alcohol, Tobacco, Firearms, and Explosives (ATF) bump stock rule went into effect on March 26. It requires owners of bump stock devices to destroy them or surrender them to the ATF. Bump stock owners who do not comply could face up to 10 years in prison and a $250,000 fine.
The ATF rule followed a February 2018 presidential memorandum signed by President Trump. The memorandum told the attorney general to propose a rule banning devices that turn legal weapons into machine guns. He signed the memorandum in response to the 2017 Las Vegas shooting where a gunman killed 58 and wounded hundreds more.
On March 25, the D.C. Circuit issued a stay for members of gun rights groups involved in a lawsuit before the court. That means the rule will not apply to members of the groups until the court decides their case. The 10th Circuit issued a stay for Clark Aposhian, a gun rights lobbyist challenging the ban with the New Civil Liberties Alliance.
Bump stocks are a firearm accessory that makes it easier to shoot faster. Supporters of the ban say that the rule protects members of law enforcement and the public from mass shooters. Opponents say agencies like the ATF do not have the constitutional authority to ban bump stocks by redefining legal terms. They argue that only Congress may write criminal laws.
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Voters in Kansas will decide a constitutional amendment to end the practice of adjusting census data for legislative apportionment

On November 5, 2019, voters in Kansas will decide a ballot measure to end a process that requires the state to adjust its census population for state legislative redistricting. Kansas is the only state that adjusts its census population for redistricting.
Before 1988, Kansas reapportioned state legislative districts based on the state government’s own census. In 1988, voters approved a constitutional amendment to use the decennial federal census for state legislative redistricting, with adjustments to (1) exclude nonresident military personnel stationed in Kansas and nonresident students and (2) include resident military personnel and resident students in the district of their permanent residence.
The 2019 ballot measure would eliminate the requirement to adjust the census population for state legislative apportionment. Secretary of State Scott Schwab (R), who supports the ballot measure, said the state would spend an estimated $834,000 to adjust the 2020 U.S. Census. He said the state would hire a private consultant for the adjustment, who would contact military personnel and students and ask where they want to be counted.
The ballot measure was referred by the Kansas State Legislature. On March 14, the state Senate voted unanimously to approve the constitutional amendment. On March 27, the state House voted 117 to seven. As a constitutional amendment, the governor’s signature is not required.
Following the 2010 federal census, Kansas used a mix of electronic and paper questionnaires to make the adjustments for military personnel and students. Riley County, Kansas, was the only county with a negative adjustment of over two percent. The adjustment resulted in a decrease of 11,017 residents, or 15.5 percent, for the purpose of redistricting. Riley County is home to Kansas State University and the U.S. Army’s Fort Riley.
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Bevin makes appointment to Kentucky Supreme Court

Kentucky Gov. Matt Bevin (R) appointed former appeals judge David Buckingham to the Kentucky Supreme Court on March 27. Buckingham succeeds Bill Cunningham, who retired on January 31. A special election will be held on November 5 to elect a replacement to fill the remainder of Cunningham’s term.
Bevin chose Buckingham from a list of three potential nominees provided to him by the Kentucky Judicial Nominating Commission. Buckingham is Bevin’s first appointment to the seven-member court.
Buckingham will be the third member of the court appointed by a Republican governor. One justice was first appointed by a Democratic governor, and the three remaining justices first joined the court as the result of a nonpartisan election.
Buckingham graduated from Murray State University in 1974 and earned his J.D. from the University of Louisville’s Brandeis School of Law in 1977. He began serving as a judge for the 42nd District Court in 1982, then joined the 42nd Circuit Court in 1987 and the Kentucky Court of Appeals in 1997. He was a senior judge for the Court of Appeals from 2006 to 2010. In 2011, he retired from the bench and returned to private practice.
So far in 2019, there have been 11 supreme court vacancies across seven states where replacement justices are appointed instead of elected. Republicans are responsible for filling nine of those vacancies, while Democrats are responsible for filling the other two. Eight of those vacancies have been filled.
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State legislative special elections contested across four states on Tuesday

Four states—Maine, Mississippi, Pennsylvania, and Wisconsin—each have one state legislative seat up for special election on April 2, 2019.
  • In Maine, Sean Paulhus (D) and Kenneth Sener (R) are running in the general election for the state House’s District 52 seat. The seat was vacated when Jennifer DeChant (D) resigned on February 1, 2019, to work for Charter Communications. This is the second state legislative special election in Maine for 2019; Joseph Perry (D) won the state House’s District 124 seat vacated by Aaron Frey (D) on March 12. Prior to the special election, the Maine House of Representatives has 88 Democrats, 56 Republicans, five independents, one Common Sense Independent, and one vacancy.
  • In Mississippi, Kent McCarty and Steven Utroska are running in the general runoff election for the state House’s District 101 seat. Mississippi special elections are nonpartisan, but both candidates identify themselves as Republicans on their campaign websites. The seat was vacated when Brad Touchstone (R) was elected as a Lamar County Court judge. The runoff was called after none of the five candidates in the March 12 general election received a majority of the vote; McCarty and Utroska advanced as the top two vote recipients. This is the third state legislative special election in Mississippi in 2019; Solomon Osborne won the state House’s District 32 seat, and Ronnie Crudup Jr. won the state House’s District 71 seat on March 12. Both Osborne and Crudup Jr. identify as Democrats. Prior to the special election, the Mississippi House of Representatives has 46 Democrats, 73 Republicans, one independent, and two vacancies.
  • In Pennsylvania, Pam Iovino (D) and D. Raja (R) are running in the general election for the state Senate’s District 37 seat. The seat was vacated when Guy Reschenthaler (R) was elected to represent Pennsylvania’s 14th Congressional District in the U.S. House in 2018. This is the fourth third state legislative special election in Pennsylvania in 2019; Bridget Malloy Kosierowski (D) won the state House’s District 114 seat, and Movita Johnson-Harrell (D) won the state House’s District 190 seat on March 12. Prior to the special election, the Pennsylvania State Senate has 21 Democrats, 26 Republicans, and three vacancies.
  • In Wisconsin, Tip McGuire, Pedro Rodriguez, Gina Walkington, and Spencer Zimmerman are running in the Democratic primary for the state Assembly’s District 64 seat. Mark Stalker is running unopposed for the Republican nomination. The general election is on April 30, 2019. The seat was vacated when Peter Barca (D) stepped down in January 2019 after Gov. Tony Evers (D) nominated him to be secretary of the Wisconsin Department of Revenue. This is the first state legislative special election in Wisconsin in 2019. Prior to the special election, the Wisconsin State Assembly has 35 Democrats, 63 Republicans, and one vacancy.
In 2019, there have been 51 state legislative special elections scheduled or held so far in 19 states. Between 2011 and 2018, an average of 77 special elections took place each year.
Maine has a Democratic trifecta, and Mississippi has a Republican trifecta. A state government trifecta exists when one political party simultaneously holds the governor’s office and both state legislative chambers. Pennsylvania and Wisconsin both have divided governments. In both states, Republicans control both chambers of the state legislature, but a Democrat holds the governor’s office.
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Comparing and contrasting methods for judicial selection in the states

Each state has its own specific method for selecting judges but there are four primary selection types: partisan election, nonpartisan election, legislative election, and gubernatorial appointment.
A majority (26) of state supreme courts use gubernatorial appointment, while 22 use either partisan or nonpartisan elections. Two states, South Carolina and Virginia, select state supreme court justices by a vote of the state legislature.
What do supporters and opponents say about each method?
  • Proponents of elections say elections allow people to hold judges accountable. Opponents say that such elections allow for the influence of special interests on judicial selection.
  • Proponents of gubernatorial appointments say that it protects the independence of the judiciary by eliminating political campaigns. Opponents say that voters should be given a voice in selecting judges to keep them accountable.
  • Proponents of legislative elections say that they prevent any one authority figure from having too much power, but opponents say that it promotes political inbreeding and create a judiciary primarily made up of past legislators.

Party fundraising update: Republican committees raise $54.4 million, Democratic committees raise $39.6 million

Republican Party Congressional party committees outraised their Democratic counterparts in the first two months of 2019 $54.4 million to $39.6 million, in line with trends from the 2018 campaign cycle.
The committees are the Republican National Committee (RNC), National Republican Congressional Committee (NRCC), and National Republican Senatorial Committee (NRSC), along with the Democratic National Committee (DNC), Democratic Congressional Campaign Committee (DCCC), and Democratic Senatorial Campaign Committee (DSCC).
The DCCC was the one Democratic group to raise more money than its Republican counterpart in the first two months of 2019. It raised $19.0 million to the NRCC’s $12.1 million and spent $14.1 million compared to the NRCC’s $11.3 million. However, the NRCC had more cash on hand than the DCCC ($17.4 million to $10.4 million), and less debt ($5.8 million to $12.0 million). The DCCC raised more than the NRCC in 2018, $191.0 million to $120.8 million.
The RNC raised $30.3 million to the DNC’s $12.7 million. The RNC also spent more than the DNC ($22.7 million to $13.8 million) and had nearly five times the cash on hand as the DNC ($31.1 million to $7.5 million). In 2018, the RNC raised $192.4 million to the DNC’s $109.8 million and spent $207.6 million to the DNC’s $107.9 million.
The NRSC raised $12.0 million, while the DSCC raised $7.9 million, and spent $9.9 million to the DSCC’s $2.9 million. The DSCC reported more cash on hand, with $11.2 million to the NRSC’s $9.6 million, and nearly twice as much debt ($21.0 million to the NRSC’s $12.0 million). In 2018, the NRSC raised $109.7 million and spent $117.4 million to the DSCC’s $94.3 million raised and $107.1 million spent.
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Dallas city elections: What and who is on the ballot

Dallas, the nation’s ninth-largest city by population, will hold elections for mayor and city council on May 4, 2019. If no candidate receives a majority of the vote in a race on May 4, a runoff will be held on June 8, 2019.
Current Mayor Mike Rawlings, in office since 2011, is prevented by term-limits from seeking re-election. Nine candidates qualified for the ballot, representing a mixture of backgrounds in local and state government, business, the nonprofit sector, and more.
Four candidates in the race hold or have held elected office: Dallas City Councilman Scott Griggs, state Rep. Eric Johnson (D), Dallas Independent School District Trustee Miguel Solis, and former state Rep. Jason Villalba (R).
Candidates Albert Black and Regina Montoya have other forms of government experience. Black was the chairman of the Dallas Housing Authority under Mayor Rawlings. Regina Montoya was the chair of the Mayor’s Task Force on Poverty under Rawlings, and she was assistant for intergovernmental affairs to President Bill Clinton (D).
Candidate Mike Ablon is a real estate developer. Alyson Kennedy was the 2016 Socialist Workers Party presidential candidate. Lynn McBee is CEO of the nonprofit Young Women’s Preparatory Network.
In addition to the mayor’s race, Dallas will hold elections for all 14 city council seats. Ten incumbents are seeking re-election, and four races are open (Districts 1, 5, 9, and 12). Nobody is running unopposed.
The city of Dallas uses a council-manager system. In this form of municipal government, the mayor serves on the city council—the city’s primary legislative body. The council and mayor appoint a chief executive called a city manager to oversee day-to-day municipal operations and implement the council’s policy and legislative initiatives. The mayor of Dallas presides over the city council and makes policy and budget recommendations. The mayor does not have veto power.
Dallas’ use of the council-manager system is unique among large cities. Most cities in the United States with populations over one million use a strong mayor system, in which the mayor—instead of a city manager—serves as the city’s chief executive.
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