TagBP Analysis

Ballotpedia releases federal judicial vacancy count for November

In this month’s federal judicial vacancy count, Ballotpedia tracked nominations, confirmations, and vacancies to all United States Article III federal courts from November 2, 2020, to December 1, 2020. Ballotpedia publishes the federal judicial vacancy count at the start of each month.

HIGHLIGHTS

Vacancies: There has been one new judicial vacancy since the October 2020 report. There are 53 vacancies out of 870 active Article III judicial positions on courts covered in this report. Including the United States Court of Federal Claims and the United States territorial courts, 60 of 890 active federal judicial positions are vacant.

  • Nominations: There has been one new nomination since the October 2020 report.
  • Confirmations: There have been seven new confirmations since the October 2020 report.

New vacancies

There were 53 vacancies out of 870 active Article III judicial positions, a total vacancy percentage of 6.1.

  • The nine-member U.S. Supreme Court does not have any vacancies.
  • Three (1.7%) of the 179 U.S. Appeals Court positions are vacant.
  • 49 (7.3%) of the 677 U.S. District Court positions are vacant.
  • One (11.1%) of the nine U.S. Court of International Trade positions is vacant.

A vacancy occurs when a judge resigns, retires, takes senior status, or passes away. Article III judges, who serve on courts authorized by Article III of the U.S. Constitution, are appointed for life terms.

One judge left active status, creating one Article III life-term judicial vacancy, since the previous vacancy count. As Article III judicial positions, vacancies must be filled by a nomination from the president. Nominations are subject to confirmation on the advice and consent of the U.S. Senate.

U.S. Court of Appeals vacancies

The following chart tracks the number of vacancies on the United States Court of Appeals from the inauguration of President Donald Trump (R) to the date indicated on the chart.

The following maps show the number of vacancies on the United States Court of Appeals at Trump’s inauguration and as of December 1, 2020.

New nominations

President Donald Trump (R) has announced one new nomination since the October 2020 report.

  • Raúl Arias-Marxuach, to the United States Court of Appeals for the 1st Circuit.

New confirmations

Since November 2, 2020, the United States Senate has confirmed seven of President Trump’s nominees to an Article III seat. 

  • James Knepp, confirmed to the United States District Court for the Northern District of Ohio.
  • Aileen Cannon, confirmed to the United States District Court for the Southern District of Florida.
  • Benjamin Beaton, confirmed to the United States District Court for the Western District of Kentucky.
  • Toby Crouse, confirmed to the United States District Court for the District of Kansas.
  • Kristi Johnson, confirmed to the United States District Court for the Southern District of Mississippi.
  • Kathryn Kimball Mizelle, confirmed to the United States District Court for the Middle District of Florida.
  • Stephen Vaden, confirmed to the United States Court of International Trade.

As of December 1, 2020, the Senate has confirmed 227 of President Trump’s judicial nominees—168 district court judges, 53 appeals court judges, three Court of International Trade judges, and three Supreme Court justices—since January 2017.

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How did political parties perform in races where the same candidates ran in 2018 and 2020?

In the 2020 general election, 402 elections in Ballotpedia’s coverage scope were rematches between the same candidates who ran for office in 2018. These rematches represented about 4.2% of all general election races in Ballotpedia’s coverage scope.

Rematch elections in 2020 included:

  • 56 races for the U.S. House.
  • One state executive race.
  • 342 state legislative races.
  • Three local races in our coverage scope.

Results in 26 rematch races (three U.S. House races and 23 state legislative races) were unavailable as of December 1.

Of the called races in 2020, Republicans won 229 (about 57%) to Democrats’ 146 (about 36%) and third-party and nonpartisan candidates’ two (about 0.5%). 

In 2018, Republicans won 222 (about 55%) of the 2020 rematch districts, while Democrats won 175 (about 44%), and third-party or nonpartisan candidates won two (about 0.5%).

In 2020, 87 rematches (about 22%) were decided by a margin of 10 percentage points or fewer. In 2018, 130 (about 32%) of the same races were decided by a margin of 10 percentage points or fewer.



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

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

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

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

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One-sixth of U.S. House retirees in 2020 won re-election in 2018 by less than six points

Of the 36 U.S. House incumbents that did not run for re-election in 2020, six (16.7%) won re-election in 2018 by less than six points. That’s a higher percentage than in both 2018 (10.3%) and 2016 (7.3%).

Exactly one-third of 2020 retirees won re-election in 2018 by more than 36 points. That’s a higher percentage than 2018 (27.5%) but lower than 2016 (41.4%). The 2020 retiree with the largest margin of victory in 2018 was Jose Serrano, who won re-election to represent New York’s 15th Congressional District by 92 percentage points.

One 2020 retiree, Joseph Kennedy III (D-Mass.), was unopposed in his last re-election campaign. That matches the number of 2016 retirees who were previously unopposed. The 2018 election cycle had two retirees who were previously unopposed.

The 36 members of the U.S. House in this analysis do not include members of the 116th Congress who left office early. Of those 36 members, nine are Democrats, 26 are Republicans, and one is a Libertarian.



Ballotpedia study shows that 25 state APAs and constitutions specify qualifications for administrative agency leaders

Banner with the words "The Administrative State Project"

A Ballotpedia survey of all 50 state constitutions and administrative procedure acts (APAs) revealed that 25 state APAs and constitutions specify qualifications for administrative agency leaders and the other half of the states do not specify any required qualifications as of November 2020. 

Administrative agency leaders are those who direct the activities of state agencies. State requirements for agency leaders vary but some require leaders to be over a certain age, be U.S. citizens, have relevant professional experience, or have special certifications.

To learn more about Ballotpedia’s study, see here: 

Agency dynamics: States that specify qualifications for administrative agency leaders

Want to go further? Learn more about the five pillars of the administrative state here:

Administrative state

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Ballotpedia study shows that 12 state APAs define what qualifies as a guidance document

Graphic with the five pillars of the

A Ballotpedia survey of all 50 state constitutions and administrative procedure acts (APAs) revealed that 12 state APAs include provisions that define what qualifies as a guidance document and the other 38 states do not have provisions in their APAs or constitutions defining guidance as of September 2020. 

Guidance is a term used to describe a variety of documents created by government agencies to explain, interpret, or advise interested parties about rules, laws, and procedures. Guidance documents typically clarify and affect how agencies administer regulations and programs. However, they are not legally binding in the same way as rules made using the rulemaking procedures established by a state’s Administrative Procedure Act.

The survey about guidance in the states is one of several about administrative agency dynamics, one of the five pillars key to understanding the main areas of debate about the nature and scope of the administrative state.

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What are Pivot Counties?

Image of donkey and elephant to symbolize the Democratic and Republican parties.

Two hundred and six counties nationwide voted for Barack Obama (D) in 2008 and 2012 before voting for Donald Trump (R) in 2016. Voters in these Pivot Counties cast 7.5 million votes in 2016—5.5% of all votes cast that year.

The 206 Pivot Counties are located in 34 states. Iowa’s 31 Pivot Counties—out of 99 counties overall—is the most of any state. Half of Maine’s 16 counties are Pivot Counties, the greatest proportion of any state. Maine is also the state with the greatest percentage of its population—47.1%—residing in Pivot Counties. Nine states have 10% or more of their population living in Pivot Counties.

The 206 Pivot Counties include 57 counties that have voted for every winning presidential candidate since 2000. Two of those counties—Valencia County, New Mexico, and Vigo County, Indiana—have voted for every winning presidential candidate since 1960.

Across all Pivot Counties, the average swing towards Republicans between 2012 and 2016 was 19.7 percentage points; Barack Obama carried the Pivot Counties by an average margin of 8.2 percentage points in 2012, while Donald Trump carried them by an average margin of 11.5 percentage points in 2016.

Barack Obama carried 16 Pivot Counties by margins of 1 percentage point or less in 2012; his narrowest margin in a Pivot County that year was 0.04 percentage points in Price County, Wisconsin, which Donald Trump carried by a margin of 25.00 percentage points in 2016. Five Pivot Counties went to Obama by margins of 20 percentage points or wider in 2012. His widest margin in any pivot county was 26.07 percentage points in Franklin County, New York, which Donald Trump carried by a margin of 5.45 percentage points in 2016.

In 2016, Donald Trump carried 12 Pivot Counties by margins of 1 percentage point or less, with his narrowest margin of victory being 0.12 percentage points in Panola County, Mississippi, which Barack Obama had carried by 8.62 percentage points in 2012. Trump carried 37 Pivot Counties by margins of 20 percentage points or greater. His widest margin of victory, and his only margin greater than 30 percentage points, was 44.13 percentage points in Elliott County, Kentucky. Barack Obama carried Elliott County by a margin of 2.50 percentage points in 2012 and 25.17 percentage points in 2008, representing a 69.30 percentage point swing towards Republicans at the presidential level in eight years.

In the 2018 U.S. House elections, there were 99 districts intersecting with Pivot Counties. Republicans represented 63 of those districts to Democrats’ 36. Democrats gained a net eight seats, winning 44 to Republicans’ 54 (the results of one U.S. House election were not certified owing to allegations of election fraud). At the county level, Democratic U.S. House candidates won 113 (55%) of Pivot Counties. In 184 Pivot Counties (89%), the Republican U.S. House nominee either lost the county or won with a narrower margin of victory than President Trump (R) had in 2016.

There are also six reverse Pivot Counties, which voted for John McCain (R) in 2008, Mitt Romney (R) in 2012, and Hillary Clinton (D) in 2016. Three of these counties were in Georgia, with one each in California, Maryland, and Texas. On average, the Reverse Pivot Counties had a larger population than Pivot Counties—971,164 to 78,018.

We’ll be watching how the Pivot Counties vote in the 2020 presidential election and updating our coverage with the latest details as they are available; check back later this week for more!

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15 races we’re watching in 2020

On November 3, Americans will elect thousands of offices up and down the ballot, including the presidency, 35 seats in the U.S. Senate, all 435 seats in the U.S. House, 11 governorships, and 5,875 seats across 86 state legislative chambers. Ballotpedia has identified the top 15 races we’ll be watching (the presidential election aside), listed alphabetically and by race type.

These elections were selected by members of Ballotpedia’s editorial department based on past election results, unique election-specific circumstances, and race ratings published by elections forecasters. We selected a mix of federal and state races.

  • U.S. Senate election in Georgia: Incumbent David Perdue (R) faces Jon Ossoff (D) and Shane Hazel (L). If no candidate wins more than 50% of the vote, the top two finishers will advance to a runoff on January 5, 2021. Depending on the results of other Senate elections, such a runoff could end up determining control of the chamber.
  • U.S. Senate special election in Georgia: Incumbent Kelly Loeffler (R), who was appointed to the Senate following Johnny Isakson’s (R) retirement, faces 20 challengers in this special election for the remainder of Isakson’s term. Special Congressional elections in Georgia do not have primaries, meaning every candidate advanced directly to the general election. The polling and fundraising leaders are Loeffler, Doug Collins (R), Matt Lieberman (D), and Raphael Warnock (D). Like the other Georgia Senate election, this race will advance to a runoff unless one candidate wins more than 50% of the vote.
  • U.S. Senate election in Iowa: Incumbent Joni Ernst (R), Theresa Greenfield (D), Rick Stewart (L), and Suzanne Herzog (I) are running for one of Iowa’s seats in the U.S. Senate. Iowa has been contested political territory in recent elections; its total of 31 Pivot Counties (which voted for Barack Obama (D) in 2008 and 2012 and Donald Trump (R) in 2016) is greater than that of any other state.
  • U.S. Senate election in Kansas: Barbara Bollier (D), Roger Marshall (R), and Jason Buckley (L) are running for the U.S. Senate seat left open by Pat Roberts’ (R) retirement. Bollier, a state legislator who left the Republican Party in 2018, would be the first Democrat to win election to the U.S. Senate since 1932.
  • U.S. Senate election in Maine: Incumbent Susan Collins (R), Sara Gideon (D), and five other candidates are running for one of Maine’s U.S. Senate seats. This election will use ranked-choice voting, a system where voters rank candidates in order of their preference rather than voting for one.
  • U.S. Senate election in North Carolina: Incumbent Thom Tillis (R), Cal Cunningham (D), Kevin E. Hayes (Constitution Party), and Shannon Bray (L) are running for one of North Carolina’s seats in the U.S. Senate. Tillis would be the first incumbent to successfully win re-election to this seat since Jesse Helms (R) in 1996.
  • California’s 25th Congressional District: Incumbent Mike Garcia (R) and Christy Smith (D) are running in this Los Angeles-area U.S. House district. Katie Hill (D) flipped this district in 2018 before resigning the next year amid allegations of an extramarital affair. In the May 2020 special election, Garcia defeated Smith to flip the district back, becoming the first Republican to flip a U.S. House district in California since 1998.
  • Georgia’s 7th Congressional District: Carolyn Bourdeaux (D) and Rich McCormick (R) are running for this suburban Atlanta district, currently represented by retiring incumbent Rob Woodall (R). Bourdeaux was the Democratic nominee in 2018 when she lost to Woodall by a 433-vote margin; the narrowest of any U.S. House race that year.
  • Minnesota’s 7th Congressional District: Incumbent Collin Peterson (D), Michelle Fischbach (R), and Slater Johnson (Legal Marijuana Now Party) are running in this western Minnesota district. Donald Trump (R) won this district 62% to 31% in 2016, his largest margin of victory in any House district currently represented by a Democrat.
  • New Mexico’s 2nd Congressional District: Incumbent Xochitl Torres Small (D), Yvette Herrell (R), and Steve Jones (I) are running for this southern New Mexico district. This is one of 56 U.S. House rematches in 2020; Torres Small and Herrell were their party’s nominees in 2018. That year, Torres Small defeated Herrell 51% to 49%.
  • South Carolina’s 1st Congressional District: Incumbent Joe Cunningham (D) and Nancy Mace (R) are running for this southeastern South Carolina district. Cunningham became the first Democrat elected from the district since 1978 when he first won election in 2018. President Trump defeated Hillary Clinton (D) 54% to 40% in the district in 2016.
  • Utah’s 4th Congressional District: Incumbent Ben McAdams (D), Burgess Owens (R), and John Molnar (L) are running for this suburban Salt Lake City district. McAdams defeated incumbent Mia Love (R) to win election in 2018. His 694-vote margin of victory was the narrowest in any U.S. House election that resulted in a flipped seat that year.
  • Governor of North Carolina: Incumbent Roy Cooper (D), Dan Forest (R), Al Pisano (Constitution Party), and Steven DiFiore II (L) are running for governor of North Carolina. Cooper defeated incumbent Pat McCrory (R) 49.0% to 48.8% in 2016, the same year Donald Trump (R) defeated Hillary Clinton (D) 50% to 46%.
  • Washington Secretary of State: Incumbent Kim Wyman (R) and Gael Tarleton (D) are running for Washington Secretary of State. The secretary of state, which serves as Washington’s chief elections officer, is one of two statewide offices currently held by Republicans. Tarleton would be the first Democrat elected to the office since 1960.
  • Michigan Supreme Court: Seven candidates are running for two seats on the seven-member Michigan Supreme Court. Currently, the court is comprised of four members appointed by Republican governors and three elected after winning a nomination from the Democratic Party. One Republican-affiliated and one Democratic-affiliated seat are up, meaning the elections have the potential to tilt the balance on the court.

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Ballotpedia study shows that 29 state APAs require administrative agencies to conduct a cost-benefit analysis before implementing rules

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A Ballotpedia study of all 50 state constitutions and administrative procedure acts (APAs) showed that 29 state APAs require administrative agencies to conduct a cost-benefit analysis before implementing rules, as of September 2020.

Cost-benefit analysis is an aspect of agency dynamics, one of the five pillars key to understanding the main areas of debate about the nature and scope of the administrative state. Cost-benefit analysis requires administrative agencies to consider whether the potential costs of a new rule will outweigh its benefits.

Since President Ronald Reagan issued Executive Order 12291 in 1981, federal administrative agencies have conducted cost-benefit analyses for any new major rules. President Bill Clinton refined cost-benefit analysis requirements in Executive Order 12866 in 1993 and Presidents George W. Bush, Barack Obama, and Donald Trump have maintained cost-benefit analysis requirements in their own executive orders.

Ballotpedia’s study of state agency cost-benefit analysis standards concluded a variety of results.

Many states require administrative agencies to perform a cost-benefit analysis before making or changing any rules or regulations. Thus, Ballotpedia concluded that those states *require cost-benefit analysis*.

Some states require administrative agencies to perform the cost-benefit analysis only in certain circumstances. For instance, Illinois only requires such analysis if a proposed rule may have an impact on small businesses, nonprofit corporations, or small municipalities. Thus, Ballotpedia concluded that those states *conditionally require cost-benefit analysis*.

Some states require administrative agencies to perform a limited cost-benefit analysis before making rules. For instance, Alaska requires agencies to estimate annual costs for the state agency to implement the new rule. Thus, Ballotpedia concluded that those states require *limited cost-benefit analysis*.

Some states do not require administrative agencies to perform a cost-benefit analysis before making or changing any rules or regulations. Thus, Ballotpedia concluded that those states *do not require cost-benefit analysis*.

To learn more about Ballotpedia’s survey related to agency dynamics, see here:
Agency dynamics: States that require administrative agencies to conduct a cost-benefit analysis before implementing rules

Want to go further? Learn more about the five pillars of the administrative state here: Administrative state

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