Daily Brew: Gubernatorial Wave Elections Since 1918

June 20, 2018

What would constitute a 2018 gubernatorial wave election across the country? + What’s next for SCOTUS: Lucia is still to come   What would constitute a gubernatorial wave election across the country? Today is Part Two of our three-part series on wave elections. Continuing the dive into our wave elections analysis, we look at gubernatorial wave elections since 1918. Republicans would need to lose seven state governorships for 2018 to qualify historically as a wave election. Most modern gubernatorial elections occur on a four-year schedule and give the opposing party the chance to win seats during presidential midterms. Several two-term Republican governors elected in swing states during the 2010 GOP wave are leaving office. Possible Democratic pickups include Ohio, Illinois, Iowa, Florida, Michigan, Nevada, and New Mexico. Presidents Reagan (R) and Obama (D) lost seven gubernatorial seats in 1982 and 2010, respectively, while Nixon (R) lost 12 seats, the most ever, in 1970. The 1970 elections are notable because even though the Republican Party had historically high losses in gubernatorial elections, it picked up three Senate seats. Click here to learn more about why we call 1970 an offsetting wave election and how this might apply to 2018. Learn more about gubernatorial waves         What’s next for SCOTUS: Lucia is still to come Before month's end, the Supreme Court of the United States is expected to issue rulings in 14 undecided cases. One of these is Lucia v. SEC, a case concerning the role of administrative law judges (ALJs) within federal executive branch agencies. ALJs preside over administrative hearings, which usually involve a disagreement between a federal agency and an affected party. The plaintiffs in this case (Raymond J. Lucia and Raymond J. Lucia Companies) were accused by the Securities and Exchange Commission (SEC) of violating the Investment Advisers Act. An ALJ for the SEC heard the case and ruled against Lucia. Lucia appealed that decision, first to the SEC then to the federal courts, arguing that the proceeding was unconstitutional because it had been overseen by an ALJ who had not been properly appointed under the Appointments Clause, which requires that "officers of the United States" are to be appointed by the president with the advice and consent of the Senate. The question before the Supreme Court is "whether administrative law judges (ALJs) of the Securities and Exchange Commission (SEC) are Officers of the United States within the meaning of the Appointments Clause." If the court determines that ALJs are officers of the state, their appointments must be ratified either by the president with the advice and consent of the Senate, the president alone, the courts, or the heads of departments. Removal provisions for ALJs might also be deemed unconstitutional if the court finds in favor of Lucia, and the validity of SEC administrative proceedings before improperly appointed ALJs might be called into question. What might the broader implications of Lucia be? Lucia will have broader implications for administrative proceedings conducted by ALJs in other federal agencies. The Solicitor General stated that the case “affects not merely the Commission’s enforcement of the federal securities laws, but also the conduct of adversarial administrative proceedings in other agencies within the government.” Mark Perry, Supreme Court counsel for Raymond Lucia, notes that the majority of ALJs work for the Social Security Administration and would not likely be affected by a ruling in Lucia’s favor, but about 142 ALJs across other agencies “exercise significant power in enforcement proceedings” and could be subject to the Appointments Clause. Learn more→