On Feb. 13, Kansas Sen. Bud Estes (R) died after being hospitalized with an illness. Estes was first elected to state Senate District 38 in 2016, serving until his death. Before that, Estes was a member of the Kansas House of Representatives, representing District 119 from 2013 to 2017.
Estes ran for re-election to the Kansas Senate on Nov. 3, 2020, winning with 68.9% of the vote to Edgar Pando’s (D) 31.1%. In addition to his public service, Estes had owned a farm implementation business.
Republican precinct committee members will select Estes’ replacement, with Gov. Laura Kelly (D) officially making the appointment. Since the vacancy occurred before May 1 of the second year of Estes’ term, the appointee will serve until the next general election in November 2022. A special election will then be held for the seat, with the winner serving the remainder of Estes’ term.
As of Feb. 16., there were 28 Republicans, 11 Democrats, and one vacancy in the Kansas state Senate. Kansas 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.
The U.S. Senate acquitted President Donald Trump (R) of incitement of insurrection on Feb. 13. All 50 Democrats and seven Republicans voted guilty. The other 43 Republicans voted not guilty. The seven Republicans to vote guilty were:
◦ Richard Burr (R-N.C.)
◦ Bill Cassidy (R-La.)
◦ Susan Collins (R-Maine)
◦ Lisa Murkowski (R-Alaska)
◦ Mitt Romney (R-Utah)
◦ Ben Sasse (R-Neb.)
◦ Pat Toomey (R-Pa.)
Trump is the only president to be impeached twice by the House. Trump was previously acquitted of abuse of power by a vote of 52-48 and obstruction of Congress by a vote of 53-47 on Feb. 5, 2020.
Georgia Supreme Court Chief Justice Harold Melton scheduled his retirement from the bench for July 1, 2021. Melton said he would begin his post-retirement planning following this announcement. Melton’s replacement will be Governor Brian Kemp’s (R) third nominee to the nine-member supreme court.
Under Georgia law when an interim vacancy occurs, the seat is filled using the assisted appointment method of judicial selection. The governor selects the interim justice from a slate of candidates provided by the Georgia Judicial Nominating Commission. The commission recommends at least five candidates to the governor unless fewer than five applicants are found to be qualified. There is no requirement that the governor appoint a candidate from the nominating commission’s list.
Chief Justice Melton joined the Georgia Supreme Court in 2005. He was appointed to the court by Governor Sonny Perdue (R).
Before serving on the state supreme court, Melton began his legal career in the Georgia Department of Law. He went on to serve as a section leader with the Consumer Interests Division. He also served as executive counsel to Gov. Perdue.
Following Melton’s retirement, the Georgia Supreme Court will include the following members:
• Michael P. Boggs: appointed by Gov. Nathan Deal (R) in 2017
• David Nahmias: appointed by Gov. Sonny Perdue (R) in 2009
• Nels Peterson: appointed by Gov. Nathan Deal (R) in 2016
• Charlie Bethel: appointed by Gov. Nathan Deal (R) in 2018
• John Ellington: elected in 2018
• Carla W. McMillian: appointed by Gov. Brian Kemp (R) in 2020
• Sarah Warren: appointed by Gov. Nathan Deal (R) in 2018
• Shawn LaGrua: appointed by Gov. Brian Kemp (R) in 2020
In 2021, there have been eight supreme court vacancies in seven of the 29 states where replacement justices are appointed instead of elected. The vacancies have been caused by retirements.
Iowa Gov. Kim Reynolds (R) issued an order easing coronavirus restrictions, effective Feb. 7. The order lifted the statewide mask mandate and limits on indoor and outdoor gatherings. Reynolds first issued the face-covering requirement on Nov. 17, requiring everyone two years or older to wear masks in indoor spaces open to the public where social distancing could not be maintained.
Iowa is the third state to lift a statewide public mask mandate. Mississippi’s statewide order expired Sept. 30, 2020, and North Dakota’s order expired Jan. 18, 2021.
Thirty-six states currently have statewide mask orders, including all 23 states with Democratic governors and 13 out of the 27 states with Republican governors.
New Mexico state Rep. Phelps Anderson changed his voter registration from Republican to “declined to state” on Feb. 5 after he was the only Republican to vote in favor of repealing a 1969 anti-abortion law.
Phelps was first elected to House District 66 in 2018 and ran uncontested for re-election in 2020.
Of the 70 members in the New Mexico House, 45 are Democrats, 24 are Republicans, and one is an independent.
This is the third state legislator in New Mexico to switch parties since 1994. Rep. Andrew Nunez changed his partisan affiliation to independent on Jan. 25, 2011. Nunez represented District 36 from 2001 to 2013. On Nov. 10, 2020, District 12 Rep. Brittney Barreras changed her partisan affiliation from independent to Democratic. Barreras is currently serving her first term in the House.
On Feb. 6, two new state legislators were appointed to fill vacancies in the Illinois state Senate. Doris Turner (D) was appointed by the Democratic county chairs of the 48th Legislative District Committee to fill the seat formerly occupied by Andy Manar (D). Manar left office in January in order to take a position as senior advisor to Illinois Governor J.B. Pritzker (D).
At the time of her appointment, Turner served as Ward 3 Alderman for the city of Springfield, Illinois. She previously worked for the State of Illinois for 33 years, 22 of which were with the Illinois Department of Public Health.
Mike Simmons (D) was appointed by the Cook County Democratic Party committee to fill the District 7 seat left vacant by the retirement of Heather Steans (D) in January. Steans cited a need for “fresh eyes and fresh energy,” and that it was “time to pass the baton.” Simmons is the founder of Blue Sky Strategies & Co. and previously worked as a policy director for Chicago mayor Rahm Emanuel, and for U.S. Senator Dick Durbin (D-IL).
When a vacancy occurs in the Illinois state Senate, the Illinois Constitution requires that it be filled by appointment by the political party that last held the seat. The new legislator must be chosen by the party organization covering the legislative district within 30 days.
The Illinois state Senate is the upper chamber of the Illinois General Assembly. With the appointments of Turner and Simmons, the current partisan breakdown of the chamber is 41 Democrats, 18 Republicans, and no vacancies.
Voters in New York will decide a ballot measure to add a right to clean water, clean air, and a healthful environment to the New York Constitution’s Bill of Rights. The ballot measure would make New York the third state, after Pennsylvania and Montana, to adopt an environmental rights amendment. Pennsylvania and Montana both adopted their amendments in the 1970s.
In New York, a constitutional amendment requires approval in two successive legislation sessions to go on the ballot. Legislators approved the proposal in 2019 and 2021. On January 12, 2021, the state Senate voted 48 to 14 to approve the amendment. Senate Democrats supported the proposal, and Senate Republicans were divided 6 to 14. On February 8, the state Assembly voted 124 to 25, with support from all Democrats, 17 Republicans, and the chamber’s one Independence Party member.
The 15-word constitutional amendment reads: “Each person shall have a right to clean air and water, and a healthful environment.”
State Sen. Robert Jackson (D-31) sponsored the proposal in the Senate. He said, “This language will finally put in place safeguards that require the government to consider the environment and our relationship to the Earth in decision making. If the government fails in that responsibility, New Yorkers will finally have the right to take legal action for a clean environment because it will be in the State Constitution.”
State Sen. Dan Stec (R-45), who voted against the constitutional amendment, stated, “I’m all for clean air and clean water. Who isn’t? But in the face of ambiguity you will have distrust, you will have lawsuits, you will have costs, and I’m trying to avoid that.”
The election on November 2, 2021, could feature as many as six amendments to the New York Constitution. The Environmental Rights Amendment is the second approved for the ballot after legislators referred a redistricting measure on January 20, 2021. Since 1995, New Yorkers have approved 76.0% (19 of 25) of the constitutional amendments that have appeared on their ballots.
The U.S. Supreme Court (SCOTUS) took action on a number of cases on February 3, issuing opinions in three cases, granting review in one case, and removing two cases from its February 2021 argument calendar.
SCOTUS issued opinions in Salinas v. United States Railroad Retirement Board, Federal Republic of Germany v. Philipp, and Republic of Hungary v. Simon.
• Salinas v. United States Railroad Retirement Board involved the scope of judicial review of actions taken by administrative agencies. In a 5-4 opinion, the court ruled that a choice by the U.S. Railroad Retirement Board not to reopen a decision to deny Manfredo Salinas benefits was a final agency action subject to judicial review. In the majority opinion, the court said that review of agency reopening decisions will be limited to weighing whether the agency decision was an abuse of discretion. SCOTUS’ ruling reversed the United States Court of Appeals for the 5th Circuit’s decision and remanded the case back to the lower court for further proceedings. Justice Sonia Sotomayor wrote the majority opinion that was joined by Chief Justice John Roberts and Justices Stephen Breyer, Elena Kagan, and Brett Kavanaugh. Justice Clarence Thomas filed a dissenting opinion that was joined by Justices Samuel Alito, Neil Gorsuch, and Amy Coney Barrett.
• Federal Republic of Germany v. Philipp concerned the doctrine of international comity and the expropriation exception of the Foreign Sovereign Immunities Act (FSIA). In a unanimous ruling, SCOTUS vacated the U.S. Court of Appeals for the D.C. Circuit’s ruling and remanded the case for further proceedings, holding that FSIA’s expropriation exception includes the domestic takings rule, meaning that a foreign sovereign taking its own nationals’ property is not unlawful under the international law of expropriation. Chief Justice John Roberts wrote the opinion for the court.
• Republic of Hungary v. Simon also involved the doctrine of international comity and the expropriation exception of FSIA. In a unanimous, unsigned opinion, SCOTUS vacated the U.S. Court of Appeals for the D.C. Circuit’s ruling and remanded the case for further proceedings consistent with the court’s ruling in Federal Republic of Germany v. Philipp.
SCOTUS granted review in the case of PennEast Pipeline Co. v. New Jersey. The case originated from the U.S. Court of Appeals for the 3rd Circuit and concerns jurisdictional requirements of eminent domain under the Natural Gas Act.
• The case: The Natural Gas Act (NGA) allows private gas companies to exercise the federal government’s power to take property by eminent domain if certain jurisdictional requirements are met. Natural gas company PennEast Pipeline Company (“PennEast”) was scheduled to build a natural gas pipeline through part of New Jersey. PennEast obtained federal approval and sued for access to the properties under the NGA in federal district court. The State of New Jersey (“New Jersey”) sought to dismiss PennEast’s suits, arguing that PennEast did not satisfy the NGA’s jurisdictional requirements and that the state held immunity from the suit under the Eleventh Amendment to the U.S. Constitution. The U.S. District Court for the District of New Jersey allowed PennEast immediate access to the properties at issue. New Jersey appealed to the U.S. Court of Appeals for the 3rd Circuit, which held that New Jersey was immune and vacated the district court’s orders.
• The issue: “Whether the NGA delegates to FERC certificate holders [have] the authority to exercise the federal government’s eminent domain power to condemn land in which a state claims an interest.”
SCOTUS also announced it was removing two cases from its February argument calendar: Trump v. Sierra Club and Wolf v. Innovation Law Lab. In both cases, the U.S. government requested the court remove the cases from its argument calendar to allow the government to hold further briefings related to policy changes enacted by the Biden administration. SCOTUS granted the government’s motions. Trump v. Sierra Club had been scheduled for argument on February 22; Wolf v. Innovation Law Lab had been scheduled for March 1.
SCOTUS began hearing cases for its October 2020-2021 term on October 5, 2020. The court’s yearly term begins on the first Monday in October and lasts until the first Monday in October the following year. The court generally releases the majority of its decisions in mid-June. As of February 3, 2021, the court had agreed to hear 63 cases during its 2020-2021 term. Of those, 12 were originally scheduled for the 2019-2020 term but were delayed due to the coronavirus pandemic.
On Feb. 2, North Carolina Gov. Roy Cooper (D) announced new school guidance and encouraged public K-12 schools to reopen for full-time in-person instruction. The guidance says elementary schools should reopen under Plan A, which does not require social distancing. Middle and high schools should reopen under Plan B, which does require social distancing. Districts still have to provide a remote learning option for families that choose to opt in to remote learning.
Cooper said he wants to leave the final reopening decisions to school districts. Previously, the state only permitted hybrid or fully remote instruction for middle and high school students.
• Washington, D.C. has a district-ordered school closure.
• Five states (Calif., Del., Hawaii, N.M., W.Va.) has state-ordered regional school closures, required closures for certain grade levels, or allowed hybrid instruction only.
• Four states (Ark., Fla., Iowa, Texas) has state-ordered in-person instruction.
• Forty-one states leave decisions to schools or districts.
Supporters of a recall campaign against California Gov. Gavin Newsom (D) have until March 17 to collect 1,495,709 valid signatures to trigger a recall election. On February 1, 2021, recall organizers said they had collected about 1.3 million signatures.
Recall supporters say Newsom mishandled the state’s response to the coronavirus pandemic, did not do enough to address the state’s homelessness rate, and supported sanctuary city policies and water rationing. In June 2020, Newsom said that the recall will cost state taxpayers $81 million and is being led by supporters of President Donald Trump (R).
After the March 17 submission deadline, counties will have until April 29 to verify signatures. If enough signatures are verified, 30-day period will begin in which signees may remove their names from the petition. After the withdrawal window, the legislative budget committee has 30 days to review and comment on the estimated cost of the election. After that review, the lieutenant governor would be required to call a recall election within 60 to 80 days.
On February 1, 2021, former San Diego Mayor Kevin Faulconer (R) announced his intent to run for governor in either the 2022 general election or the recall election should it make the ballot. Faulconer served as mayor from March 2014 to December 2020.
Since 1911, there have been 55 attempts to recall a sitting California governor. The only recall campaign to succeed was in 2003 when former California Gov. Gray Davis (D) was recalled by voters. Arnold Schwarzenegger (R) was chosen as Gray’s replacement.