On July 8, the Supreme Court of the United States (SCOTUS) issued an opinion in the case Our Lady of Guadalupe School v. Morrissey-Berru, which was consolidated with the case St. James v. Biel. Both cases originated from the U.S. Court of Appeals for the 9th Circuit and concerned employment discrimination claims filed against religious institutions. The case was argued during the court’s October Term for 2019-2020 on May 11, 2020.
The case: In both cases, two teachers at Catholic schools were not offered contract renewals. Both teachers filed discrimination claims in federal district court against their former employers. The court ruled that both schools were protected religious organizations exempted from anti-discrimination employment laws. Both teachers appealed to the 9th Circuit, which reversed the district court’s ruling in one case and denied petition for rehearing and for rehearing en banc in the second case.
The issue: Whether the religion clauses prevent civil courts from adjudicating employment discrimination claims brought by an employee against her religious employer, where the employee carried out important religious functions.
The outcome: The court reversed and remanded the decision of the 9th Circuit in a 7-2 ruling, holding that the First Amendment’s religion clauses foreclose the adjudication of Morrissey-Berru’s and Biel’s employment discrimination claims. Justice Samuel Alito delivered the opinion of the court. Justice Clarence Thomas filed a concurring opinion, joined by Justice Neil Gorsuch. Justice Sonia Sotomayor filed a dissenting opinion, joined by Justice Ruth Bader Ginsburg.
As of July 8, 2020, the court had issued decisions in 58 cases this term. Between 2007 and 2018, SCOTUS released opinions in 850 cases, averaging 77 cases per year.
In this month’s federal judicial vacancy count, Ballotpedia tracked nominations, confirmations, and vacancies from June 2, 2020, to July 1, 2020. Ballotpedia publishes the federal judicial vacancy count at the start of each month.
• Vacancies: There have been two new judicial vacancies since the May 2020 report. There are 73 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, 79 of 890 active federal judicial positions are vacant.
• Nominations: There have been two new nominations since the May 2020 report.
• Confirmations: There have been three new confirmations since the May 2020 report.
There were 73 vacancies out of 870 active Article III judicial positions, a total vacancy percentage of 8.4.
• The nine-member U.S. Supreme Court does not have any vacancies.
• None of the 179 U.S. Appeals Court positions are vacant.
• 71 (10.5%) of the 673 U.S. District Court positions are vacant.
• Two (22.2%) of the nine U.S. Court of International Trade positions are 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 Constitution, are appointed for life terms.
Two judges left active status, creating Article III life-term judicial vacancies. As Article III judicial positions, these 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.
1. Judge Justin Walker was elevated to the U.S. Court of Appeals for the District of Columbia Circuit.
2. Judge Brian Cogan assumed senior status on the U.S. District Court for the Eastern District of New York.
President Donald Trump (R) has announced two new nominations since the May 2020 report.
1. James P. Arguelles, to the U.S. District Court for the Eastern District of California.
2. Taylor McNeel, to the U.S. District Court for the Southern District of Mississippi.
Since taking office in January 2017, President Trump has nominated 262 individuals to Article III positions.
Since June 2, 2020, the United States Senate has confirmed three of President Trump’s nominees to Article III seats.
1. Drew Tipton, confirmed to the United States District Court for the Southern District of Texas.
2. Justin Walker, confirmed to the United States Court of Appeals for the District of Columbia Circuit.
3. Cory Wilson, confirmed to the United States Court of Appeals for the 5th Circuit.
As of July 2, 2020, the Senate has confirmed 200 of President Trump’s judicial nominees—143 district court judges, 53 appeals court judges, two Court of International Trade judges, and two Supreme Court justices—since January 2017.
Donald Trump has appointed and the Senate has confirmed 200 Article III federal judges through July 1, 2020, his fourth year in office. This is the second-most Article III judicial appointments through this point in all presidencies since Jimmy Carter (D). The Senate had confirmed 247 of Carter’s appointees at this point in his term.
The average number of federal judges appointed by a president through July 1 of their fourth year in office is 185.
The median number of Supreme Court justices appointed is two. Along with President Trump, Presidents Barack Obama (D), Bill Clinton (D), and George H.W. Bush (R) had each appointed two Supreme Court justices at this point in their first terms. Ronald Reagan (R) had appointed one, while Carter and George W. Bush (R) had not appointed any.
The median number of United States Court of Appeals appointees is 35. Carter appointed the most with 54, while Reagan appointed the least with 27. Trump’s 53 appointments make up 30% of the total 179 judgeships across the courts of appeal.
The median number of United States District Court appointees is 143. Carter appointed the most with 190, and Reagan appointed the fewest with 117. Trump has appointed 143 district court judges so far. Those appointments make up 21% of the 677 judgeships across the district courts.
Article III federal judges are appointed for life terms by the president of the United States and confirmed by the U.S. Senate per Article III of the United States Constitution. Article III judges include judges on the: Supreme Court of the United States, U.S. courts of appeal, U.S. district courts, and the Court of International Trade.
The U.S. Supreme Court issued two opinions in five cases. In Bostock v. Clayton County, Georgia (consolidated with Altitude Express Inc. v. Zarda and R.G. & G.R. Harris Funeral Homes v. EEOC), SCOTUS ruled “an employer who fires an individual merely for being gay or transgender violates” Title VII of the Civil Rights Act of 1964. Title VII outlawed discrimination on the basis of race, color, religion, sex, or national origin. The three cases questioned whether sexual orientation and gender identity were included in Title VII’s prohibition of discrimination “because of … sex.”
In Bostock v. Clayton County, Georgia, the 11th Circuit held that sexual orientation was not a form of sex discrimination under Title VII. In Altitude Express Inc. v. Zarda and R.G. & G.R. Harris Funeral Homes v. EEOC, the 2nd Circuit and 6th Circuit, respectively, held that sexual orientation was a form of sex discrimination under Title VII.
In a 6-3 ruling, the court reversed the 11th Circuit and affirmed the 2nd and 6th Circuits. Writing for the majority, Justice Neil Gorsuch argued, “Today, we must decide whether an employer can fire someone simply for being homosexual or transgender. The answer is clear. An employer who fires an individual for being homosexual or transgender fires that person for traits or actions it would not have questioned in members of a different sex. Sex plays a necessary and undisguisable role in the decision, exactly what Title VII forbids.”
Justice Samuel Alito filed a dissenting opinion, joined by Justice Clarence Thomas. Justice Brett Kavanaugh also filed a dissenting opinion.
United States Forest Service v. Cowpasture River Preservation Association (consolidated with Atlantic Coast Pipeline LLC v. Cowpasture River Preservation Association) concerned whether the U.S. Forest Service had the authority to grant rights-of-way through lands traversed by the Appalachian Trail within national forests. In a 7-2 opinion, the court reversed the 4th Circuit’s judgment, holding the Forest Service does have authority to grant rights-of-way. Justice Clarence Thomas wrote the majority opinion.
In his opinion, Justice Thomas wrote, “We conclude that the lands that the Trail crosses remain under the Forest Service’s jurisdiction and, thus, continue to be ‘Federal lands’ under the [Mineral] Leasing Act.” Justice Sonia Sotomayor, joined by Justice Elena Kagan, dissented.
On June 1, 2020, the Supreme Court of the United States (“SCOTUS”) issued rulings in five cases argued during its October 2019-2020 term:
Financial Oversight and Management Board for Puerto Rico v. Aurelius Investment LLC (Consolidated with Aurelius Investment v. Puerto Rico, Official Committee of Debtors v. Aurelius Investment, United States v. Aurelius Investment, and UTIER v. Financial Oversight and Management Board for Puerto Rico)
Banister v. Davis
Thole v. U.S. Bank
GE Energy Power Conversion France SAS v. Outokumpu Stainless USA LLC
Nasrallah v. Barr
Financial Oversight and Management Board for Puerto Rico v. Aurelius Investment LLC
Financial Oversight and Management Board for Puerto Rico v. Aurelius Investment LLC came on a writ of certiorari to the U.S. Court of Appeals for the 1st Circuit and involved how the Appointments Clause in Article II of the U.S. Constitution applies to U.S. territories. The case was argued before the Supreme Court of the United States on October 15, 2019.
The case: In 2016, Congress enacted the Puerto Rico Oversight, Management, and Economic Stability Act. The act created the Financial Oversight and Management Board and authorized the board to begin debt adjustment proceedings on behalf of the Puerto Rico government. After the board began proceedings in 2017, Aurelius Investment LLC, (“Aurelius”) and the Unión de Trabajadores de la Industria Eléctrica y Riego (“UTIER”) challenged the board’s authority in federal district court, arguing the board members’ appointment violated the Appointments Clause of the U.S. Constitution. The district court ruled against Aurelius and UTIER. On appeal, the 1st Circuit Court of Appeals reversed the district court in part, holding the board members “must be, and were not, appointed in compliance with the Appointments Clause.”
The issue: Whether the Appointments Clause governs the appointment of members of the Financial Oversight and Management Board for Puerto Rico.
The outcome: The court ruled 9-0 that the Appointments Clause governed the appointment of members of the FOMB but that the method of appointment used did not violate its requirements.
Banister v. Davis
Banister v. Davis came on a writ of certiorari to the U.S. Court of Appeals for the 5th Circuit and concerned timely habeas petitions. The case was argued before the Supreme Court on December 4, 2019.
The case: In 2004, a jury convicted Gregory Banister of aggravated assault with a deadly weapon. After several appeals, Banister filed a petition under Rule 59(e) of the Federal Rule of Civil Procedure, asking the Northern District of Texas to revisit an earlier judgment. The district court denied the petition. On appeal, the 5th Circuit Court of Appeals also denied Banister’s petition for a certificate of appealability on the grounds the petition was untimely based on Gonzalez v. Crosby. Banister appealed to the U.S. Supreme Court, arguing there was a circuit split on extending the Gonzalez decision to include Rule 59(e) motions.
The issue: Whether and under what circumstances a timely Rule 59(e) motion should be recharacterized as a second or successive habeas petition under Gonzalez v. Crosby, 545 U.S. 524 (2005).
The outcome: The court reversed and remanded the judgment of the 5th Circuit in a 7-2 vote, holding that because a Rule 59(e) motion to alter or amend a habeas court’s judgment is not a second or successive habeas petition under 28 U.S.C. §2244(b), Banister’s appeal was timely.
Thole v. U.S. Bank
Thole v. U.S. Bank was a case concerning the Employee Retirement Income Security Act of 1974 (ERISA) and whether the plaintiffs had standing. It came on a writ of certiorari to the U.S. Court of Appeals for the 8th Circuit and was argued before SCOTUS on January 13, 2020.
The case: James Thole and Sherry Smith sued U.S. Bank, N.A. over U.S. Bank’s management of a defined benefit pension plan. Thole and Smith alleged the bank violated the Employee Retirement Income Security Act of 1974 (ERISA) and engaged in prohibited transactions, causing the plan to become underfunded. U.S. Bank sought to dismiss the case, arguing the plaintiffs did not have the legal right to sue and the statute of limitations had run out on the ERISA claims. The district court dismissed in part and granted in part U.S. Bank’s motion. In 2014, the plan became overfunded. The district court dismissed the case as moot. Thole and Smith appealed to the 8th Circuit, which affirmed the district court’s ruling. The plaintiffs then petitioned the U.S. Supreme Court to review the case, arguing the 8th Circuit’s ruling conflicted with other circuit court decisions.
May an ERISA plan participant or beneficiary seek injunctive relief against fiduciary misconduct under 29 U.S.C. 1132(a)(3) without demonstrating individual financial loss or the imminent risk thereof?
May an ERISA plan participant or beneficiary seek restoration of plan losses caused by fiduciary breach under 29 U.S.C. 1132(a)(2) without demonstrating individual financial loss or the imminent risk thereof?
Whether petitioners have demonstrated Article III standing.
The outcome: The court affirmed the 8th Circuit’s decision in a 5-4 ruling, holding the plaintiffs did not have standing and would still receive the same amount of monthly benefits regardless of the case’s outcome.
GE Energy Power Conversion France SAS v. Outokumpu Stainless USA LLC
GE Energy Power Conversion France SAS v. Outokumpu Stainless USA LLC was a case relating to the Convention on the Recognition and Enforcement of Foreign Arbitral Awards (the “New York Convention”). It came on a writ of certiorari to the U.S. Court of Appeals for the 11th Circuit and was argued before the Supreme Court on January 21, 2020.
The case: Outokumpu Stainless USA LLC (“Outokumpu”) contracted with Fives St. Corp. (“Fives”) to provide equipment for its steel plant in Alabama. Fives subcontracted with GE Energy Power Conversion France SAS (“GE Energy”), a foreign corporation, to supply the equipment. The contracts between Outokumpu and Fives and between Fives and GE Energy contained arbitration clauses. The equipment was installed between 2011 and 2012 but failed by 2015. Outokumpu sued GE Energy in Alabama state court. The case was moved to federal district court, which dismissed the case and compelled Outokumpu to undertake arbitration proceedings. On appeal, the 11th Circuit Court of Appeals reversed the district court’s decision to compel arbitration. GE Energy appealed to the U.S. Supreme Court for review, arguing the 11th Circuit’s decision underlined a 2-to-2 circuit court split.
The issue: Whether the Convention on the Recognition and Enforcement of Foreign Arbitral Awards permits a non-signatory to an arbitration agreement to compel arbitration based on the doctrine of equitable estoppel.
The outcome: The court reversed the decision of the 11th Circuit in a unanimous ruling, holding the Convention on the Recognition and Enforcement of Foreign Arbitral Awards does not conflict with doctrines in state law that allow the enforcement of arbitration agreements by non-signatories to those agreements.
Nasrallah v. Barr
Nasrallah v. Barr was a case concerning judicial review of a noncitizen’s factual challenges to an order denying relief under the international Convention Against Torture. The case came on a writ of certiorari to the U.S. Court of Appeals for the 11th Circuit and was argued before the Supreme Court on March 2, 2020.
The case: Nidal Khalid Nasrallah, a citizen and native of Lebanon, pleaded guilty to two counts of receiving stolen property in interstate commerce in the United States. An immigration judge determined that one of Nasrallah’s convictions involved moral turpitude and constituted a particularly serious crime, but granted Nasrallah protection from removal from the country under the Convention Against Torture. The case was appealed to the Board of Immigration Appeals, which affirmed in part and reversed in part the immigration judge’s decision and ordered Nasrallah’s removal. Nasrallah petitioned the 11th Circuit for review. The 11th Circuit denied in part and dismissed in part the petition.
The issue: “Whether, notwithstanding Section 1252(a)(2)(C), the courts of appeals possess jurisdiction to review factual findings underlying denials of withholding (and deferral) of removal relief.”
The outcome: The court reversed the 11th Circuit’s judgment in a 7-2 vote, holding that U.S. Code Sections 1252(a)(2)(C) and (D) do not prevent judicial review of a noncitizen’s factual challenges to a denial of relief order under the international Convention Against Torture.
As of June 1, 2020, the court had issued decisions in 38 cases this term. Between 2007 and 2018, SCOTUS released opinions in 924 cases, averaging between 70 and 90 cases per year. The court agreed to hear 74 cases during its 2019-2020 term.
On June 1, a unanimous U.S. Supreme Court ruled that the Appointments Clause of the U.S. Constitution does not require members of the Puerto Rican Financial Oversight and Management Board (FOMB) to face confirmation by the U.S. Senate.
The Appointments Clause gives the president authority to appoint officers of the United States, subject to confirmation by the U.S. Senate. These officers include ambassadors, heads of Cabinet-level departments, and federal judges. The U.S. Supreme Court ruled that because FOMB members have primarily local powers and duties that the Appointments Clause does not restrict how they are selected.
Congress created the FOMB in 2016 and authorized the board to begin debt adjustment proceedings on behalf of the Puerto Rican government. The seven-member board is made up of one member chosen at the president’s discretion and six other members selected by the president from a list written by members of Congress.
Aurelius Investment LLC and the Unión de Trabajadores de la Industria Eléctrica y Riego challenged the FOMB’s authority, arguing that board members’ appointments violated the Appointments Clause. Aurelius and the union claimed that the board members are “Officers of the United States” who must be nominated by the president and confirmed by the Senate. The board argued that because its activities are primarily local in nature its members do not qualify as “Officers of the United States.” The U.S. Supreme Court ruled in favor of the board and sent the case to the U.S. Court of Appeals for the First Circuit for further proceedings.
Justice Clarence Thomas wrote a concurring opinion arguing that the court made the right decision for the wrong reasons. He would have relied on the original public meaning of the phrase _officers of the United States_ to resolve the case.
Justice Sonia Sotomayor wrote a separate concurring opinion arguing that “territorial status should not be wielded as a talismanic opt out of prior congressional commitments or constitutional constraints.” She stated that because the parties in the case did not address the implications of Puerto Rican home rule on the Appointments Clause she chose to concur in the judgment of the court.
On May 19, U.S. District Judge Edmund A. Sargus ordered Ohio to accept electronic signatures from the campaigns sponsoring the Minimum Wage Increase Initiative and the Voting Requirements Initiative. The judge also extended the signature deadline from July 1 to July 31. The judge’s order only applies to the ballot measure campaigns that sued the state, including several local marijuana decriminalization initiative campaigns.
On March 30, 2020, Ohioans for Raise the Wage and Ohioans for Secure and Fair Elections filed a lawsuit in the Franklin County Court of Common Pleas asking for the July 1 signature deadline to be extended, the number of signatures required to be reduced, and permission to gather signatures online. On April 28, Judge David C. Young dismissed the case arguing that since the petition requirements for initiatives are in the Ohio Constitution “the ability to change those requirements is reserved only to the people.” He added that there is no exception for public health emergencies. Following the case dismal, the campaigns brought their case to the federal court.
U.S. District Judge Sargus argued in his opinion that “these unique historical circumstances of a global pandemic and the impact of Ohio’s Stay-at-Home Orders, the State’s strict enforcement of the signature requirements for local initiatives and constitutional amendments severely burden Plaintiff’s First Amendment rights.” The ruling did not change the number of signatures required or the state’s distribution requirement.
Ohio filed an appeal of the ruling on May 20. If the decision is not reversed, Ohioans for Raise the Wage and Ohioans for Secure and Fair Elections have until July 31 to collect 443,958 valid signatures.
The Minimum Wage Initiative would incrementally increase the state’s minimum wage to $13 per hour by January 1, 2025. After 2025, the minimum wage would be tied to inflation. The first increase would be on January 1, 2021, to $9.60 per hour.
The Voting Requirements Initiative would remove the requirement that voters must be registered 30 days prior to an election; require absentee ballots requested by military personnel or voters outside of the U.S. be sent 46 days before the election; automatically register citizens at motor vehicle departments unless the citizen refuses registration via a written statement; allow voter registration at polling locations; and require 28 days of early voting.
Ballotpedia has identified 11 lawsuits in nine states seeking changes or suspensions of ballot measure requirements. The topics of the lawsuits include:
• the number of signatures required,
• notary requirements for remote signatures,
• the ability to collect signatures electronically, and
• the extension of signature deadlines.
Before March 2020, no states allowed the use of electronic signatures for statewide initiative and referendum petitions. While some states allowed remote signatures through petition sheets printed, signed, and mailed, no states allowed remote signature gathering through email before the coronavirus pandemic.
On April 29, 2020, Massachusetts became the first state to allow campaigns to collect electronic signatures for statewide citizen-initiatives for the 2020 cycle after four campaigns filed a lawsuit and the secretary of the commonwealth agreed to a settlement.
Colorado Governor Jared Polis (D) signed an executive order on May 17 that authorized the Colorado Secretary of State to establish temporary rules allowing for remote petition signature gathering to be signed through mail and email. The rules were expected to be finalized by the Secretary of State in early June. Prior to the order, petition circulators were required to witness each act of signing in person. The order also removed individual initiative signature deadlines of six months after ballot language finalization and instead required that signatures for all initiatives are due by August 3, 2020.
The Washington, D.C., Council passed a bill on May 5 that allowed remote signature gathering for initiative campaigns through email.
On May 13, 2020, the Arizona Supreme Court rejected a request made by four ballot initiative campaigns to allow them to gather signatures through E-Qual, which is the state’s online signature collection platform, during the coronavirus pandemic.
On April 30, Missoula District Judge John Larson rejected a request by Montana ballot initiative petitioners to allow them to use electronic signatures. Judge Larson ruled that the State’s “compelling interest in maintaining the integrity and security of its election process outweighs any burden on [the] Plaintiffs’ constitutional rights.”
The U.S. Senate confirmed three nominees to U.S. District Court judgeships. The Senate has confirmed 196 of President Trump’s Article III judicial nominees—two Supreme Court justices, 51 appellate court judges, 141 district court judges, and two U.S. Court of International Trade judges—since January 2017.
The confirmed nominees are:
Scott Rash, confirmed to the United States District Court for the District of Arizona on a 74-20 vote. After Rash receives his judicial commission and takes his judicial oath, the court will have:
• One vacancy.
• Seven Democrat-appointed judges and five Republican-appointed judges.
John Heil III, confirmed to the United States District Courts for the Northern District of Oklahoma, Eastern District of Oklahoma, and Western District of Oklahoma, on a 75-17 vote. After Heil receives his judicial commission and takes his judicial oath, the Northern District court will have:
• No vacancies.
• One Democrat-appointed judge and three Republican-appointed judges.
The Eastern District will have:
• No vacancies.
• Two Republican-appointed judges and no Democrat-appointed judges.
The Western District will have:
• No vacancies.
• Six Republican-appointed judges and no Democrat-appointed judges.
Anna Manasco, confirmed to the United States District Court for the Northern District of Alabama. After Manasco receives her judicial commission and takes her judicial oath, the court will have:
• No vacancies.
• Two Democrat-appointed judges and six Republican-appointed judges.
Article I, Section 2, of the United States Constitution requires that a census of the U.S. population be conducted every 10 years. Census results inform apportionment and redistricting efforts. The congressional and state legislative district maps drawn on the basis of 2020 census results will stand until after the next census in 2030 (although maps may be subject to court challenges).
Article I, Section 2, also stipulates that congressional seats be apportioned, or allotted, to the states on the basis of population. There are 435 seats in the United States House of Representatives. A state may gain or lose seats in the House if its population increases or decreases, relative to the other states. In 1964, the United States Supreme Court ruled in Wesberry v. Sanders that the populations of House districts must be equal “as nearly as practicable.”
The Constitution is silent on the issue of state legislative redistricting. In the mid-1960s, the Supreme Court issued a series of rulings establishing standards for state legislative redistricting. In Reynolds v. Sims, the court ruled that “the Equal Protection Clause [of the United States Constitution] demands no less than substantially equal state legislative representation for all citizens, of all places as well as of all races.”
COVID-19 and the 2020 census
The 2020 census, the nation’s 24th, is already underway. However, the COVID-19 outbreak may cause significant delays in the count.
The Census Bureau has requested that Congress approve a four-month delay in delivering redistricting data to the states. This would postpone the following key census events (original dates are italicized; proposed postponements are bolded):
Process apportionment counts (July 31, 2020 – Dec. 31, 2020; Oct. 31, 2020 – April 30, 2021)
Process redistricting data (January 1, 2021 – March 30, 2021; May 1, 2020 – July 31, 2021)
Deliver apportionment counts to the president (Dec. 31, 2020; April 30, 2021)
Deliver redistricting counts to the states (April 1, 2021; July 31, 2021)
These delays, in turn, would affect redistricting efforts set to begin next year:
Two states – New Jersey and Virginia – are scheduled to conduct state legislative elections in 2021. In both states, primaries are scheduled for June 8, more than a month in advance of the Census Bureau’s proposed July 31 data delivery deadline.
Three states – California, Delaware, and Maine – have fixed redistricting deadlines set to occur before the July 31 deadline. Another six states – Hawaii, New York, Ohio, South Dakota, Utah, and Washington – have fixed redistricting deadlines set to occur at some point after July 31.
Nine states – Alabama, Arkansas, Illinois, Massachusetts, Nevada, New Hampshire, Oklahoma, Oregon, and Vermont – have census-contingent deadlines for state legislative redistricting. One state – Indiana – has a census-contingent deadline for congressional redistricting. Two states – Connecticut and Michigan – have census-contingent deadlines for both congressional and state legislative redistricting.
Eleven states – Alaska, Colorado, Iowa, Louisiana, Minnesota, Missouri, Montana, North Carolina, Pennsylvania (legislative districts only), Texas, and Wisconsin – have redistricting deadlines tied to the receipt or publication of census data.
Five states – Florida, Kansas, Maryland, Mississippi, and Wyoming – are not required to complete legislative redistricting until 2022. Two states – Mississippi and New Jersey – are not required to complete congressional redistricting until 2022.
Eleven states do not have any statutory or constitutional state legislative redistricting deadlines. Twenty-eight states do not have statutory or constitutional congressional redistricting deadlines.
Redistricting ballot measures
We have tracked nine statewide redistricting ballot measures this year. These measures would, to varying extents, alter existing redistricting processes ahead of the coming redistricting cycle. Social distancing protocols implemented at the state and local levels have affected signature-gathering efforts for some of these measures. Here is a brief status update on each of these nine measures:
Since our May 6 edition, we’ve tracked the following election postponement updates:
Delaware: On May 7, Gov. John Carney (D) announced the postponement of the state’s presidential primary to July 7. Carney also postponed school board elections to July 21.
New York: On May 19, a three-judge panel of the U.S. Court of Appeals for the Second Circuit affirmed a lower court decision reinstating New York’s Democratic presidential preference primary on June 23.
To date, 20 states and one territory have postponed upcoming state-level elections. These states are shaded in dark blue on the map below.
Absentee/mail-in voting modifications
Since our May 6 edition, we’ve tracked the following absentee/mail-in voting modifications:
California: On May 8, Gov. Gavin Newsom (D) signed an executive order directing county election officials to send mail-in ballots to all registered voters in the Nov. 3 general election.
Delaware: On May 7, Gov. John Carney (D) announced that the state would automatically mail absentee ballot applications to all eligible voters in the presidential preference primary.
Michigan: On May 19, Secretary of State Jocelyn Benson (D) announced that all registered voters in the Aug. 2 primary and Nov. 3 general election would automatically receive mail-in ballot applications.
New Jersey: On May 15, Gov. Phil Murphy (D) issued an executive order providing for expanded mail-in voting in the July 7 elections. All registered, active Democratic and Republican voters will automatically receive mail-in ballots. Unaffiliated and inactive voters will automatically receive mail-in ballot applications.
Oklahoma: On May 7, Gov. Kevin Stitt (R) signed SB210 into law, reinstating the absentee ballot notarization requirement struck down by the state supreme court on May 4. The legislation also included provisions applicable only to the 2020 election cycle, including absentee voting eligibility expansions and a modified verification requirement for those unable to have their absentee ballots notarized.
South Carolina: On May 13, Gov. Henry McMaster (R) signed into law a bill allowing any eligible South Carolina voter to request an absentee ballot for the state’s June 9 primary and subsequent runoff elections.
To date, 28 states have modified their absentee/mail-in voting procedures. These modifications can be divided into five broad categories:
Automatic mail-in ballots: Five states (California, Maryland, Montana, Nevada, and New Jersey) have opted to send mail-in ballots automatically to all eligible voters in advance of certain elections to ensure that most voting takes place by mail. These states are shaded in yellow in the map below.
Automatic mail-in ballot applications: Twelve states (Connecticut, Delaware, Georgia, Idaho, Iowa, Michigan, Nebraska, New York, North Dakota, Rhode Island, South Dakota, and West Virginia) are automatically sending mail-in ballot applications to all eligible voters in advance of certain elections. These states are shaded in dark blue in the map below.
Eligibility expansions: Eight states (Indiana, Kentucky, Massachusetts, New Hampshire, Oklahoma, South Carolina, Texas, and Virginia) have expanded absentee voting eligibility in certain elections. These states are shaded in light blue in the map below.
Deadline extensions: Three states (Ohio, Utah, and Wisconsin) have extended absentee/mail-in ballot request or submission deadlines in certain elections. These states are shaded in dark gray in the map below.
To date, we have tracked 118 bills that make some mention of both election policy and COVID-19. States with higher numbers of relevant bills are shaded in darker blue on the map below. States with lower numbers of relevant bills are shaded in lighter blue. In states shaded in white, we have tracked no relevant bills.
We are tracking 60 lawsuits in 26 states involving pandemic-related election issues. In our next issue, we will turn our attention to these lawsuits, examining in greater detail some of the more noteworthy suits that have been filed in recent weeks.
Federal court judge Richard Boulware on May 15, 2020, denied a request to extend the signature-gathering period for the recall effort against Gov. Steve Sisolak (D). Fight For Nevada, the group behind the recall effort, requested an extension of the 90-day period to collect signatures equal to the length of the state’s coronavirus stay-at-home order. Supporters of the recall had until May 14 to collect the 243,995 signatures needed to require a recall election. County officials have until May 20 to report the signature totals to the Nevada Secretary of State’s office.
Boulware wrote in the order, “The Court does not find that an inability to file this particular recall petition presents a severe burden when Plaintiff has not established with any detail what additional burden or inconvenience it faces if the Secretary does not extend the deadline.”
Recall supporters criticized Sisolak over his support for laws related to firearms, a statewide income tax, metering of private water wells, and a DMV policy for reporting mileage.
Nevada became a Democratic trifecta in 2019. A state government trifecta exists when one political party simultaneously holds the governor’s office and both state legislative chambers. Democrats control the state Assembly by a 28-13 margin with one vacancy and the state Senate by a 13-8 margin. Gov. Sisolak (D) succeeded Brian Sandoval (R) as governor in 2019.
Four gubernatorial recall efforts are currently underway in 2020. From 2003 to 2019, Ballotpedia tracked 21 gubernatorial recall efforts. During that time, two recalls made the ballot, and one governor was successfully recalled. Former California Gov. Gray Davis (D) was recalled in 2003 and replaced by Arnold Schwarzenegger (R). In 2012, former Wisconsin Gov. Scott Walker (R) was retained in a recall election. The only other governor to ever be successfully recalled was former North Dakota Gov. Lynn Frazier (R) in 1921.