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The Tap: The AHCA's New Amendment

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April 22, 2017Issue No. 62

The Tap Graphic-750x191px.png

The week in review: April 15 - April 21
What's on Tap next week: April 22 - April 28

Navigate The Tap by clicking the tabs below:

Federal

 
 

The week in review: April 15 - April 21
What's on tap next week: April 22 - April 28

What's on tap? On Thursday, April 20, House Republicans released a summary of a new amendment added to the American Health Care Act on April 13. The amendment would retain the 10 essential health benefits as the federal standard for what health plans must cover, but would allow states to acquire a waiver from the requirement. Other provisions in the Affordable Care Act that would be retained by the amendment included the prohibition on denying coverage forpre-existing conditions and limits on how much insurers may vary premiums based on age, gender, and health status (known as community rating). States could also obtain waivers from the community rating provisions, except for the rules limiting premium variance based on gender and age. States could only waive the limits on varying premiums based on health status if they had also established a publicly funded high-risk pool.

    • The amendment was the culmination of negotiations betweenTom MacArthur (R-N.J.), co-chair of theTuesday Group, the moderate wing of the Republican Party, andMark Meadows (R-N.C.), head of theHouse Freedom Caucus, the conservative and libertarian-leaning wing of the party. These two groups could not reach an agreement ahead of a prior scheduled vote on March 24, leading to the bill being pulled before the vote.
    • According to Politico, the House could vote on the bill as soon as next week. CNBCreported that the amendment would garner between 18 and 20 new “yes” votes from members of the Freedom Caucus.

The Week in Review

Sunday, April 16

Vice President Pence visits demilitarized zone and Seoul

  • Two days after North Korea conducted a failed ballistic missile launch, Vice President Mike Pence visited the demilitarized zone between North Korea and South Korea. "We're going to abandon the failed policy of strategic patience. But we're going to redouble our efforts to bring diplomatic and economic pressure to bear on North Korea. Our hope is that we can resolve this issue peaceably," Pence said. Speaking in Seoul, South Korea, later that day, Pence highlighted the United States' willingness to use military force if necessary. "Just in the past two weeks, the world witnessed the strength and resolve of our new President in actions taken in Syria and Afghanistan. North Korea would do well not to test his resolve—or the strength of the Armed Forces of the United States in this region. ... And as our Secretary of Defense made clear here in South Korea not long ago, we will defeat any attack, and we will meet any use of conventional or nuclear weapons with an overwhelming and effective response," Pence said.
 

Verbatim Fact Check

White House Press Secretary Sean Spicer defended the Trump administration's decision to not release White House visitor logs by claiming, "We're following the law as both the Presidential Records Act and the Federal Records Act prescribe it."Spicer was correct.  A three-judge panel of the U.S. Court of Appeals for the District of Columbia ruled in 2013 that White House visitor logs for the president, his advisers, and immediate staff are governed by the Presidential Records Act (PRA). As such, they need only be turned over to the National Archives and Records Administration when a president leaves office. The logs (and other presidential records) may become available through the Freedom of Information Act beginning five years after the end of an administration (although the outgoing president may invoke some restrictions on public access for up to 12 years).

 
Read on: Sean Spicer on White House visitor logs
 

Monday, April 17

Pro-Trump nonprofit launches $3 million ad campaign on healthcare

SCOTUS begins last argument sitting of their current term

  • The U.S. Supreme Court began the final two-week argument sitting of their current term on Monday by hearing argument in three cases. These cases marked the first cases heard by the newest member of the court, Associate Justice Neil Gorsuch.
    • In Perry v. Merit Systems Review Board, the court heard a challenge to a holding of the U.S. Court of Appeals for the District of Columbia Circuit. Federal employees can appeal adverse employment actions, such as being fired, to the Merit Systems Protection Board. In most instances, appeals of the Board's actions are heard by the Federal Circuit. When an employee’s appeal carries a claim of discrimination under federal law, however, appeals from the Board’s decisions must be heard in a federal district court. Here, a former federal employee claimed discrimination as grounds for his termination and sought to have his appeal of an adverse Board action transferred to a federal district court. The D.C. Circuit disagreed, noting that the Board dismissed Perry's action for lack of jurisdiction and that all jurisdictional challenges from the Board's actions must be appealed the Federal Circuit even if the employee claims discrimination.
    • In Town of Chester v. Laroe Estates, the court reviewed a Second Circuit action. In law, intervenors are permitted to join ongoing litigation without the permission of the original parties, either as a matter of right or at the discretion of a court. In order to intervene and participate in a lawsuit, the Second Circuit has interpreted federal rules of civil procedure such that an intervenor does not have to establish independent legal standing in a case in order to intervene so long as there is a genuine case or controversy between the original, named parties to a dispute. Six other federal appeals courts have ruled similarly, but three federal appeals courts have held that federal rules of civil procedure require an intervenor to independently establish standing in order to intervene.
    • In CalPERS v. ANZ Securities, the court reviewed a split between the Second Circuit and the Tenth Circuit over a question of class action litigation. In American Pipe & Construction v. Utah, the U.S. Supreme Court created a rule that suspends the time, under a statute of limitations, for an individual to bring claims in civil litigation. This suspension occurs for an individual who joins a class action lawsuit and then later leaves the class in order to pursue their own claims. Statutes of limitation limit the amount of time an individual has to bring a claim against another party from the time an alleged injury is discovered. Under the American Pipe rule, an individual’s time to file an individual claim within a statute of limitations is suspended, or tolled, for the length of time the individual belongs to the class, meaning the individual will still have the remaining time available under a statute of limitations to bring a claim even if their membership in the class action litigation would otherwise exceed the statute of limitations. The Second Circuit has held that American Pipe rule, however, does not apply to litigation timetables imposed under a statute of repose. A statute of repose limits the amount of time an individual has to bring a claim against another party from the date of a particular event, irrespective of when an alleged injury is discovered or for how long an individual was part of a class action lawsuit. The Tenth Circuit, however, applies the Supreme Court's rule to both statutes of limitation and statutes of repose.

Tuesday, April 18

Ossoff and Handel advance to runoff in Georgia special election

  • A special election was held in Georgia’s 6th Congressional District. Eighteen candidates competed in the election, and because no candidate received more than 50 percent of the vote, a runoff election between DemocratJon Ossoff and RepublicanKaren Handel, the two candidates who received the most votes, will be held on June 20, 2017. Ossoff received the most votes with 48.1 percent and Handel received the second highest vote share with 19.8 percent. Democratic candidates combined to receive about 49 percent of the total vote, while Republican candidates combined to receive about 51 percent of the total vote. Ossoff’s votes represented 98.1 percent of all votes cast for Democrats, while Handel won a competitive battle with three other Republican candidates, all of whom received at least 8.8 percent of the total vote.Bob Gray received 10.8 percent,Dan Moody received 8.8 percent, andJudson Hill received 8.8 percent. No other candidates in the race received more than one percent. The race has received an outpouring of money from across the country. Jon Ossoff received over $8.3 million in donations in the first quarter including donations from every state in the nation, while outside groups have poured millions into the race as well. The runoff is expected to be a close race, despite the district historically being a safe Republican district. For more information on the upcoming runoff, see our page.
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Alabama special election dates moved up

  • Alabama Gov. Kay Ivey (R) rescheduled Alabama's special U.S. Senate election for later this year. The election is being held to replace Sen. Jeff Sessions (R) who was confirmed as U.S. attorney general earlier in the year. The special election had previously been scheduled to coincide with the regular 2018 primary and general elections in the state by Gov. Robert Bentley (R). However, Bentley resigned on April 10, 2017, in the wake of an ethics investigation that led to impeachment hearings. The primary was rescheduled for August 15, 2017, with a runoff to occur on September 26, 2017, if required, and the general election was scheduled for December 12, 2017. The seat is currently held by Luther Strange (R), who was appointed by Bentley to temporarily fill the vacancy on February 9, 2017. The race is expected to be a safe Republican hold.
    • The ethics investigation began after Bentley’s wife filed for divorce in late 2015. Rep.Allen Farley (R-McCalla) called on Attorney GeneralLuther Strange's (R) office to look into allegations that Bentley used state funds to cover up activities related to his divorce and an alleged affair with one of his top advisors,Rebekah Mason. Following Strange’s appointment to the U.S. Senate, the former attorney general denied that his office had an ongoing investigation into the governor. Strange’s replacement as attorney general, Steve Marshall (R), recused himself from the case and appointed a supernumerary district attorney to lead the investigation.

Iran complying with nuclear deal but still sponsoring terrorism

  • Secretary of State Rex Tillerson sent a letter to House Speaker Paul Ryan (R-Wis.) stating that Iran is complying with the Joint Comprehensive Plan of Action (JCPOA), which is informally known as the Iran nuclear deal. Tillerson also told Ryan that the Trump administration is concerned about Iran’s role as a state sponsor of terrorism and would decide if sanctions should be reimposed. Tillerson wrote, "Iran remains a leading state sponsor of terror, through many platforms and methods. President Donald J. Trump has directed a National Security Council-led interagency review of the Joint Comprehensive Plan of Action that will evaluate whether suspension of sanctions related to Iran pursuant to the JCPOA is vital to the national security interests of the United States."

Kelly discusses threat to the homeland

  • During a speech at the Center for Cyber and Homeland Security at George Washington University, Department of Homeland Security Secretary John Kelly discussed threats to America posed by terrorists and transnational criminal organizations and explained what DHS is doing to mitigate the threats. He also called on the media, lawmakers, and public figures to stop ridiculing and insulting DHS agents. Here are some highlights:
    • Terrorism: "The threat to our nation and our American way of life has not diminished. In fact, the threat has metastasized and decentralized, and the risk is as threatening today as it was that September morning almost 16 years ago. As I speak these words the FBI has open terrorism investigations in all 50 states, and since 2013, there have been 37 ISIS-linked plots to attack our country."
    • Marijuana policy: "It is a potentially dangerous gateway drug that frequently leads to the use of harder drugs. Additionally, science tells us that it is not only psychologically addictive but can also have profound negative impact on the still developing brains of teens and up through the early 20s. Beyond that, however, its use and possession is against federal law and until the law is changed by the U.S. Congress we in DHS are sworn to uphold all the laws on the books. DHS personnel will continue to investigate marijuana’s illegal pathways along the network into the U.S., its distribution within the homeland, and will arrest those involved in the drug trade according to federal law.”
      • Kelly’s statements seemed to contradict what he told Chuck Todd on NBC’s Meet the Press two days earlier. Kelly was asked if legalizing marijuana would help or hurt the drug war. He said, “[M]arijuana is not a factor in the drug war.” He said that other drugs coming from Mexico and Central America—Methamphetamine, heroin, and cocaine—were more problematic. He added, “The solution is not arresting a lot of users. The solution is a comprehensive drug demand reduction program in the United States that involves every man and woman of goodwill.”
    • Call to respect DHS agents or change the laws: "In many ways similar to the treatment suffered by law enforcement over the last few years, they [DHS agents] are often ridiculed and insulted by public officials, and frequently convicted in the court of public opinion on unfounded allegations testified to by street lawyers and spokespersons. If lawmakers do not like the laws they’ve passed and we are charged to enforce—then they should have the courage and skill to change the laws. Otherwise they should shut up and support the men and women on the front lines.”

Where is the Carl Vinson?

  • After North Korea fired a missile on April 5, Trump said that he was sending the USS Carl Vinson Strike Group to the Korean peninsula as a warning to leaders in Pyongyang. However, the carrier strike group continued to Australia to complete training there instead of reversing course and heading to the Korean peninsula. On April 18, the U.S. military's Pacific Command said that the strike group was "proceeding to the Western Pacific as ordered." The White House said that it was not misleading in its statements about the location of the strike group. White House press secretary Sean Spicer said, “The president said we have an armada going toward the peninsula. That’s a fact. It happened. It is happening, rather.” The Pentagon also released a statement about the strike group, saying, “We communicated this badly. We, the department, communicated this badly.” Bonnie Glaser, senior adviser for Asia at the Center for Strategic and International Studies, commented on the administration's handling of the location of the Carl Vinson, saying, “At the end of the day it resulted in confused strategic communication that has made our allies nervous. If you don’t have a consistency with your actual strategy and what you’re doing with your military, that doesn’t seem terribly convincing.”

Trump outside group adds advisor

  • America First Policies, a major nonprofit organization supporting Donald Trump’s legislative agenda, added Republican strategist Brian O. Walsh as the organization’s president. The group recently added Katie Walsh—a former deputy under White House chief of staff Reince Priebus—as a senior advisor and parted ways with former Trump campaign aides Rick Gates and David Bossie. Katie and Brian Walsh are not related.

Super PAC spending begins for McCaskill

  • Majority Forward, which is affiliated with the main super PAC for Senate Democrats, Senate Majority PAC, announced that it had begun a $500,000 radio advertising campaign to support Sen. Claire McCaskill (D-Mo.). The ads say, “Today, hospitals in rural Missouri are in crisis. Nearly half are at risk of shutting down. That’s why Sen. Claire McCaskill is fighting back. … A daughter of rural Missouri, Claire McCaskill’s determined to protect rural health care.” McCaskill could be vulnerable: she is up for re-election in 2018 in a state that President Trump won by 18 percentage points in 2016. Democrats are left defending 25 of the 33 Senate seats up for election in 2018 (counting two currently held by independents who caucus with the Democratic Party.) Of those 25 seats, 10 were won by President Trump, indicating an expected vulnerability in 2018.

SCOTUS continues April sitting

  • The U.S. Supreme Court continued its April sitting with arguments in two cases:
    • In Kokesh v. SEC, the court reviewed a judgment of the Tenth Circuit Court of Appeals. A federal law imposes a five-year statute of limitations on enforcing any civil fine, penalty, or forfeiture. Pursuant to a guilty verdict in federal district court, a judge imposed judgment on Charles Kokesh, including an order for disgorgement. Disgorgement consists both of factfinding by a court to determine an amount of money acquired illegally as well as an order compelling the wrongdoer to pay back that amount plus interest. On appeal, Kokesh argued that the disgorgement order was in violation of federal law because the order was time-barred by the five-year statute of limitations period. Kokesh argued that disgorgement constituted a penalty and a forfeiture. The Tenth Circuit Court of Appeals disagreed, holding that disgorgement was merely remedial relief and was neither a penalty nor a forfeiture.
    • In Henson v. Santander Consumer USA, the court heard arguments about how debt buyers should be categorized under a federal law. Ricky Henson financed a car loan through CitiFinancial Auto on which he later defaulted. CitiFinancial Auto sold Henson's loan to Santander as part of a bundle of loan receivables Santander purchased. As part of its business, Santander buys such receivables at a discount and subsequently pursues repayment from those with outstanding balances. Henson filed a lawsuit in federal district court alleging that Santander engaged in illegal debt collection practices as a debt collector under the Fair Debt Collection Practices Act (FDCPA), a federal law that regulates the manner in which debt collectors may seek repayment. Santander, as a debt buyer, argued that the statute categorized Santander as a creditor, and not a debt collector, because Santander wasn't collecting debts on behalf of a third-party creditor but was instead collecting on debts which Santander itself owned. The FDCPA does not apply to creditors seeking repayment. The district court agreed with Santander and dismissed Henson's suit. A three-judge panel of the Fourth Circuit Court of Appeals affirmed.

SCOTUS issues opinions in two cases

  • The U.S. Supreme Court issued opinions in two cases on Tuesday:
    • The court issued its ruling in Goodyear Tire and Rubber Co. v. Haeger, a case on appeal from the United States Court of Appeals for the Ninth Circuit. In a unanimous opinion by Justice Elena Kagan, the judgment of the Ninth Circuit was reversed and remanded. In this case, the court held that when a federal court exercises its inherent authority to sanction a litigant acting in bad faith, the award must be limited to the fees the innocent party incurred because of the bad faith of the offending party during litigation. Any fees beyond litigation misconduct, however, cannot be awarded under a court's inherent authority.
    • In a unanimous opinion written by Justice Ruth Bader Ginsburg, the judgment of the Missouri Supreme Court was reversed and remanded in Coventry Health Care of Missouri v. Nevils. In the case, the court held that a Missouri state law unconstitutionally conflicted with a federal law permitting insurance companies under contract with the Office of Personnel Management (OPM) to pursue subrogation. Subrogation is a legal right that lets one party make a payment that is actually owed by another party, later collecting the money from the indebted party after the fact. Missouri's law prohibited any insurer from pursuing subrogation, which the court held was in conflict with a provision of the Federal Employees Health Benefits Act (FEHBA) permitting insurers to pursue subrogation. Justice Clarence Thomas authored a concurring opinion in the case.

President Trump issues Buy American, Hire American executive order

  • PresidentDonald Trump issued an executive order prioritizing federal use of American goods and services and directing changes in the process for issuing H-1Bvisas, which are visas for skilled foreign workers. The order directed federal agencies to comply with laws that require prioritizing American firms and goods when contracting for projects and to limit their use of waivers from the laws. The order also directed the secretaries of state, labor, and homeland security, in conjunction with the attorney general, to suggest potential changes to the H-1B visa program to prioritize high-skilled foreign workers and prevent fraud and abuse. At the signing, Trump said that “the policy of our government is to aggressively promote and use American-made goods and to ensure that American labor is hired to do the job.”
    • Writing in Townhall, Andy Schlafly, General Counsel for the Association of American Physicians & Surgeons, said the executive order will improve the economy by rolling back “the failed policies of his predecessors, which has [sic] cost American workers attractive jobs and has driven down wages for everyone.”
    • Writing in ThinkProgress, reporter Lauren Williams said the order could hurt the economy by “taking jobs away from American workers by encouraging companies to relocate.”
    • See also: Timeline of federal policy on immigration, 2017-2020

Wednesday, April 19

Pence sends a warning to North Korea

  • Vice President Mike Pence warned North Korea that a conventional or nuclear weapons attack would be met with force from the U.S. Standing aboard the USS Ronald Reagan in U.S. Yokosuka naval base in Tokyo Bay, Pence said, "The United States of America will always seek peace but under President Trump, the shield stands guard and the sword stands ready. ... Those who would challenge our resolve or readiness should know, we will defeat any attack and meet any use of conventional or nuclear weapons with an overwhelming and effective American response." Pence added that the Trump administration would work with Japan, China, and other global powers to prevent Pyongyang from attempting a conventional or nuclear weapons attack.

Trump administration re-evaluating policy on Iran

  • Secretary of State Rex Tillersonannounced that the Trump administration is reviewing the U.S. policy on Iran. After explaining that Iran is the world’s leading state sponsor of terrorism, he said, “An unchecked Iran has the potential to travel the same path as North Korea, and take the world along with it. The United States is keen to avoid a second piece of evidence that strategic patience is a failed approach.” Tillerson said that Iran attempts to disrupt peace throughout the world by:
    • Supporting the Assad regime in Syria;
    • Supporting some Iraqi militant groups, undermining security in Iraq;
    • Supporting Hamas and other Palestinian terrorist organizations to harm Israel;
    • Supporting the Houthis’ attempted overthrow of the Yemeni government;
    • Harassing lawfully operating U.S. naval vessels in the Persian Gulf;
    • Conducting cyber-attacks against the United States and our Gulf partners.
    • Supporting terrorist attacks throughout the rest of the world;
    • Violating basic human rights;
    • Arbitrarily detaining foreigners; and
    • Continuing to develop and test ballistic missiles in defiance of UN Security Council Resolution 2231.
  • Tillerson also discussed the Joint Comprehensive Plan of Action (JCPOA), informally known as the Iran nuclear deal, saying, “The JCPOA fails to achieve the objective of a non-nuclear Iran; it only delays their goal of becoming a nuclear state. This deal represents the same failed approach of the past that brought us to the current imminent threat we face from North Korea.”

Trump inaugural fundraising report released

  • The Federal Election Commission released its report detailing fundraising for President Trump’s inauguration ceremonies in January. The inaugural committee, led by investor Tom Barrack, raised $106.7 million; by comparison, Barack Obama’s first inaugural committee raised $53 million. Nevada casino owner Sheldon Adelson, who endorsed Trump during the 2016 election, was the largest donor at $5 million. In total, over 40 individuals and corporations donated $1 million or more to the committee.

Rep. Jason Chaffetz to step away from elected office

  • Rep. Jason Chaffetz (R) announced that he would not be seeking re-election to his House seat or any other political office in 2018. In his announcement, he wrote, “For those that would speculate otherwise, let me be clear that I have no ulterior motives. I am healthy. I am confident I would continue to be re-elected by large margins. I have the full support of Speaker Ryan to continue as Chairman of the Oversight and Government Reform Committee. That said, I have made a personal decision to return to the private sector." The day after Chaffetz’s initial announcement, he said that he might resign early. He said in a text message, "My future plans are not yet finalized but I haven't ruled out the possibility of leaving early. In the meantime I still have a job to do and I have no plans to take my foot off the gas." Chaffetz has represented Utah’s 3rd Congressional District since 2009 and is the current chairman of the House Committee on Oversight and Government Reform. The race to replace Chaffetz is expected to be a safe Republican hold.

EPA announces formal review and repeal of Obama-era methane rule

AG Jeff Sessions comments on Hawaii judge who blocked the immigration executive order

  • In an interview on the radio program The Mark Levin Show, Attorney General Jeff Sessions commented on the decision of U.S. District Court JudgeDerrick Watson in Hawaii to block the implementation of President Trump’s March 6 executive order with a preliminary injunction. “I really am amazed that a judge sitting on an island in the Pacific can issue an order that stops the President of the United States from what appears to be clearly his statutory and Constitutional power,” Sessions said. In March, Watson blocked implementation of the sections of the executive order that suspended entry into the United States for individuals from Syria, Iran, Libya, Somalia, Sudan, and Yemen and suspended all refugee admissions.
    • Both Senators from Hawaii responded to Sessions’ comment. Senator Mazie Hirono (D) wrote on Twitter, “Hawaii was built on the strength of diversity & immigrant experiences- including my own. Jeff Sessions’ comments are ignorant & dangerous.” Senator Brian Schatz (D) also wrote on Twitter, “Mr. Attorney General: You voted for that judge. And that island is called Oahu. It's my home. Have some respect.”
    • On Friday, April 21, Sessions clarified his comment, stating, “I got to tell you it is a point worth making that single sitting district judge out of 600, 700 district judges can issue an order stopping a presidential executive order that I believe is fully constitutional designed to protect the United States of America from terrorist attack.”

SCOTUS concludes the first week of its last argument sitting

  • The U.S. Supreme Court concluded its first week of the April argument sitting with arguments in two cases:
    • In Trinity Lutheran Church v. Comer, the court reviewed a judgment of the Eighth Circuit Court of Appeals. Trinity Lutheran Church operates a licensed preschool and daycare facility called The Learning Center. The Learning Center has an open admissions policy but, as a ministry of the church and as part of its daily programs, provides religious instruction from a Christian worldview. The Learning Center applied for a grant through a solid waste management program operated by the Missouri Department of Natural Resources. The program offers grants for qualifying organizations to purchase recycled tires in order to resurface playgrounds. The Learning Center's grant application was denied, citing a provision of the Missouri Constitution that prohibits public money to be given in support of a church. Trinity Lutheran claims that denying funds for a neutral, secular purpose on the basis of religion is a violation of the First and Fourteenth Amendments.
    • In Weaver v. Massachusetts, reviewed a judgment of the Massachusetts Supreme Judicial Court. The U.S. Supreme Court has held that the closure of a public trial under the Sixth Amendment is a structural error– a fundamental error which affects the structure of a trial – and that structural errors are presumed to prejudice a trial outcome. The Sixth Amendment right to the effective assistance of counsel, on the other hand, requires a criminal defendant to demonstrate both that counsel erred and that the error prejudiced the outcome of the trial. Here, Weaver appealed a murder conviction claiming he did not have the effective assistance of counsel based on his attorney's failure to object to the closure of a courtroom during jury selection. Weaver argued his attorney’s error caused a structural error at his trial. Because his attorney committed a structural error, Weaver maintained that he did not need to demonstrate prejudice, even though this is a requirement to prove deficient counsel under the Sixth Amendment. A Massachusetts lower court and the Massachusetts Supreme Judicial Court rejected Weaver's claim, holding that any claim of deficient performance of counsel – even one attending a structural error – required a defendant to demonstrate prejudice.

SCOTUS issues rulings in two cases

  • The Supreme Court announced its rulings in two cases on Wednesday.
    • In an opinion by Justice Ruth Bader Ginsburg writing for a six-justice majority, the judgment of the Colorado Supreme Court was reversed and remanded in Nelson v. Colorado. In the case, the court held that procedures required under Colorado's Exoneration Act for an exonerated defendant to recoup conviction-related funds seized by the state were in violation of the due process clause of the Fourteenth Amendment. Justice Samuel Alito authored an opinion concurring in the judgment only, meaning that he agreed with the outcome of the case but for additional or different reasons from the opinion of the court. Justice Clarence Thomas authored a dissenting opinion.
    • The court affirmed the judgment of the United States Court of Appeals for the Eleventh Circuit in Manrique v. United States. Justice Clarence Thomas wrote for a six-justice majority. In the case, the court held that a criminal defendant cannot use a single notice of appeal, filed after an initial judgment, to raise an appellate challenge to a restitution award imposed later in an amended judgment. Instead, the defendant must also file a notice of appeal to the amended judgment; otherwise, if the government objects to the defendant's failure to file a notice of appeal to the amended judgment, then the defendant is barred from challenging the restitution order on appeal. Justice Ruth Bader Ginsburg authored a dissenting opinion which was joined by Justice Sonia Sotomayor.

Thursday, April 20

Dow Chemical Co. requests rejection of EPA pesticide report

  • The Associated Press (AP) reported that Dow Chemical Company and two other companies requested that the Environmental Protection Agency (EPA) rescind federal research outlining harm to animal species from three pesticides manufactured by the companies. Lawyers for the three companies sent letters (obtained by the AP) on April 13, 2017, to the agency, arguing that the EPA report was flawed and would lead to restrictions on pesticide use; the companies also produced their own studies rebutting claims in the EPA report. The EPA's report, which contains research compiled from 2012 to 2016, found that chlorpyrifos, diazinon, and malathion—three pesticides—harmed approximately 1,800 endangered and threatened species listed under the Endangered Species Act. In March 2017, EPA Administrator Scott Pruitt denied a petition to ban the use of the chlorpyrifos pesticide on crops. The ban was proposed in 2016 by the EPA in response to a petition by Natural Resources Defense Council, an environmental advocacy group. In its 2016 human health risk assessment, the EPA argued that the use of chlorpyrifos on crops could be linked to learning and memory problems for children and farm workers who may be exposed to the pesticide. In its rejection of the proposed ban last month, the EPA argued that the previous administration's methodology was flawed and that previous scientific studies were misapplied. In response to the Associated Press story, EPA spokesman J.P. Freire said, “We have had no meetings with Dow on this topic and we are reviewing petitions as they come in, giving careful consideration to sound science and good policymaking.”
    • Proponents of banning chlorpyrifos in agriculture argue that it has been linked to learning and memory problems in individuals exposed to the pesticide at higher levels.
    • Opponents of banning chlorpyrifos argue that it is an important pest remover for farmers and is used in safe quantities during agricultural production.    
    • See also: Endangered Species Act

Friday, April 21

Trump administration secures release of humanitarian worker from Egypt

  • President Donald Trump welcomed Aya Hijazi, an Egyptian-American humanitarian worker, to the White House after his administration secured her release from Egypt. Hijazi’s husband, Mohamed Hassanein, and four other humanitarian workers were also released after being held by the Egyptian government for three years on charges of child abuse and human trafficking. While in Cairo, Hijazi and her husband opened a safe haven and rehabilitation center for street children. Defense Secretary James Mattistold reporters that the humanitarian workers were found innocent, but a senior administration official said that “assurance from the highest levels [of Sissi’s government] that whatever the verdict was, Egypt would use presidential authority to send her home.” The official also noted that no quid pro quo had been offered for Hijazi’s release. White House Press Secretary Sean Spicer said that Trump spoke to Egyptian President Abdel Fattah el-Sisi about Hijazi's release and "directly engaged behind the scenes" to bring her home. The Obama administration worked for Hijazi's release but was unsuccessful.

Congress is in session

SCOTUS is in session

The U.S. Senate will be in session Monday-Friday. The U.S. House will be in session Tuesday-Friday.

The U.S. Supreme Court will hold its final argument sitting of the October 2016 term next week. The court will hear six arguments on seven different cases. The court will conclude its term hearing arguments in 71 cases.

What's On Tap Next Week

Monday, April 24

SCOTUS hears arguments in two cases

  • The U.S. Supreme Court will hear argument in two cases on Monday:
    • In McWilliams v. Dunn, the court will review a judgment of the Eleventh Circuit Court of Appeals. In the course of a lengthy appeals process in state and federal court pursuant to multiple felony convictions related to a 1984 homicide, James McWilliams, a death row inmate in Alabama, filed ahabeas petition in federal court alleging a due process violation that he was denied meaningful expert assistance for the evaluation, preparation, and presentation of his defense at the sentencing phase of his trial. McWilliams claimed, under theU.S. Supreme Court's opinion in Ake v. Oklahoma, that he was entitled to an independent medical expert to aid in his defense rather than the state-appointed expert report that was equally disseminated to the defense, the prosecution, and the court.Alabama argued that there was no clearly established federal law requiring an independent expert in order to satisfy Ake requirements. Afederal district court denied McWilliams' habeas petition. TheEleventh Circuit Court of Appeals affirmed.
    • In Davila v. Davis, the court will consider a judgment of the Fifth Circuit Court of Appeals. During direct appeals from a capital conviction for murder, counsel for the petitioner, Erick Daniel Davila, failed to raise an objection on appeal that was raised by his counsel during his trial. In a subsequenthabeas appeal in federal court, Davila claimed the ineffective assistance of his appellate counsel because counsel failed to raise the same objection on appeal that his trial counsel raised at trial. However, afederal district court dismissed Davila's motion for habeas relief because in Davila's state habeas appeals, which took place prior to his federal habeas appeals, Davila never raised an ineffective assistance of counsel claim and, as such, his claim could not be raised in federal court; that is, the claim was procedurally defaulted. TheFifth Circuit Court of Appeals affirmed.

Tuesday, April 25

Ron Estes to be sworn in to Congress

SCOTUS continues its final week of arguments this term

  • The U.S. Supreme Court will hear arguments in two more cases on Tuesday.
    • In Bristol-Myers Squibb v. Superior Court of San Francisco County, California, the court will review a judgment of the California Supreme Court. 592 nonresident plaintiffs joined 86 residents of California in suing Bristol-Myers Squibb (BMS) over alleged injuries resulting from a BMS-manufactured drug, Plavix. At no time did any of the nonresident plaintiffs suffer injuries in California nor were any treated for injuries in California. Further, BMS did not manufacture Plavix in California at any time. BMS has significant business activities in California, but is incorporated and headquartered outside of California. Astate appeals court and theCalifornia Supreme Court held that the superior court had jurisdiction to hear the nonresident plaintiffs' complaints, holding that adjudicating merged litigation of the nonresident and California plaintiffs was not an unreasonable exercise of special, or case-specific, jurisdiction.
    • In BNSF Railway v. Tyrrell, the court will review a judgment of the Montana Supreme Court. Alleging injuries that occurred during the course and scope of his work for BNSF Railway (BNSF) which ultimately led to his death, the estate of Brent Tyrrell filed suit against BNSF in a Montana state court. BSNF moved to dismiss the case claiming the Montana court lacked jurisdiction. None of the alleged injuries occurred in Montana and BNSF is neither incorporated nor headquartered in Montana. A lower court dismissed BNSF's motion and theMontana Supreme Court affirmed, holding that jurisdiction was conferred by Montana law and the Federal Employers' Liability Act (FELA).

Wednesday, April 26

SCOTUS hears final argument of October 2016 term

  • The U.S. Supreme Court will conclude its October 2016 term with arguments in three cases consolidated into two arguments.
    • In Maslenjak v. United States, the court will review a judgment of the United States Court of Appeals for the Sixth Circuit. After lying on an application for refugee status in 1998 and affirming those lies under oath in interviews with immigration officials, Divna Maslenjak was convicted in 2014 on two criminal counts related to providing false statements. As part of her sentence, she was stripped of her naturalized citizenship. Maslenjak argued on appeal that the false statements she made were immaterial to decision to grant refugee status and that this is not sufficient to enforce a denaturalization order under the relevant federal law. The government argued that a defendant's statements need not be material in order to sustain a conviction under 18 U.S.C. §1425(a), the statements simply need to be demonstrably false. The Sixth Circuit affirmed the judgment of the lower court, however, the court also noted that their position was in conflict with four other federal appeals courts. Those courts adopt the same requirement for a civil or criminal violation. Proof of materiality is a requirement under a federal law to denaturalize a defendant for certain civil violations. The Sixth Circuit is the only circuit to hold that materiality is not required to denaturalize a citizen for similar criminal violations.
    • The court will also hear arguments in cross-appeals from the United States Court of Appeals for the Federal Circuit. The cases are Sandoz v. Amgen and Amgen v. Sandoz. Both cases allege that the Federal Circuit erroneously interpreted requirements of the Biologics Price Competition and Innovation Act (BPCIA).

Federal judicial nominee to have committee hearings

Where was the president last week?

President Donald Trump and First Lady Melania Trump hosted the 139th Easter Egg Roll on Monday at the White House. On Tuesday, Trump traveled to Wisconsin to tour Snap-On Tools, where he signed the “Buy American, Hire American” Executive Order. On Wednesday, the New England Patriots, as the winners of the most recent Super Bowl, were received at the White House.

Federal Judiciary

 

  • 137 total federal judicial vacancies
  • 2 pending nominations
  • 18 future vacancies
 

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The Lucy Burns Institute, publisher of Ballotpedia, is a 501(c)(3) nonprofit organization. All donations are tax deductible to the extent of the law. Donations to the Lucy Burns Institute or Ballotpedia do not support any candidates or campaigns.

 
 

Back to top for State and Local updates

State and Local

 

The week in review: April 25 - April 21
What's on tap next week: April 22 - April 28

Highlights

State

  • On Friday, April 21, North Carolina Gov. Roy Cooper (D) vetoed two pieces of legislation passed last week that he has argued were intended to curtail his powers as governor. Both bills were passed along party lines, with Republicans voting in favor and Democrats voting against. A three-fifths majority in both chambers (72 in the House and 30 in the Senate) is needed to override Cooper’s vetoes. Republicans have a 35-15 majority in the Senate and a 74-46 majority in the House.   
    • One bill proposed reducing the number of judges on the state Court of Appeals from 15 to 12 and to allow more cases to be appealed to the state Supreme Court. The legislation would require the next three vacancies on the court to go unfilled. Judges on the court are elected to eight-year terms but must retire at the age of 72. In the case of any midterm vacancies, the governor is responsible for appointing a replacement. Judge Doug McCullough, a registered Republican who was last elected in 2010, plans to retire in May 2017, giving Cooper an opportunity to appoint a judge to this court for the first time.
    • The other bill sought to change the appointment procedures for members of the state elections board. Under current law, the state elections board—which is responsible for settling election-related disputes and enforcing state election law—has five members, all appointed by the governor. Historically, the board’s majority has consisted of three members of the governor’s party. The new legislation proposes to expand the board to eight members—four Democrats and four Republicans—and to allow the governor to make appointments based on lists submitted by Democratic and Republican state party chairs. In addition, the legislation requires that a Republican would chair the board in years with presidential and gubernatorial elections, while a Democrat would hold the chair position during midterm elections. The bill also expands the size of county election boards from three to four, with membership to be split evenly between the two parties. The state board appoints the members of the county boards.  

Local

  • On Wednesday, April 19, a Miami judge issued a temporary restraining order to prohibit the city from enforcing its ban on short-term rentals. Judge Beatrice Butchko of Florida’s Eleventh Judicial Circuit also prohibited the city from asking residents to provide their names and addresses when speaking at future city commission hearings. The order followed recent clashes between city commissioners and short-term rental hosts. In March, commissioners voted 3-2 to declare Airbnb an illegal nuisance. Commissioners also informed the hosts who gave their names and addresses prior to speaking on behalf of short-term rentals at a city meeting that they could be investigated for code compliance. On April 14, 2017, a group of five Airbnb hosts filed suit against the city of Miami, alleging the city’s ordinance infringed on their First Amendment rights. Airbnb joined the plaintiffs in the lawsuit. Mayor Tomás Regalado (R) could not be reached for comment by Sunshine State News. Miami is the second-largest city in Florida and the 44th-largest city in the U.S. by population.
    • The debate over short-term rentals has been ongoing in the Miami area:
      • On March 19, 2017, Miami-Dade County Mayor Carlos Gimenez (R) announced that he had agreed to a tax arrangement with Airbnb. The deal applied the county’s 6 percent resort tax to Airbnb rentals and was approved by the county commission on April 4. Airbnb has been working with the 63 Florida counties with resort taxes, and Miami-Dade County was its 36th agreement of this nature. An Airbnb spokesperson responded to the mayor’s announcement by stating, “We expect that this agreement will drive many millions of dollars in new annual revenue to county coffers, on top of the economic infusion Airbnb guests already pump into the South Florida economy through spending with neighborhood merchants.” Mayor Gimenez’s communication head indicated that he would consider instituting additional regulations on sharing economy businesses such as Airbnb and Uber. According to Airbnb, Miami-Dade County is one of its five most popular regions and had an estimated 530,000 tourists who stayed at Airbnb rentals in 2016. Miami-Dade County is the largest county in Florida and the seventh-largest county in the United States by population.

State Politics: The Week in Review

Ballot Measures Update

2017:

2018:

Monday, April 17

First Calexit Initiative Effort Ends; Supporters Say Calexit 2.0 is Coming

  • The campaign behind the Calexit initiative calling for an independence referendum in California ended. Louis Marinelli, the president of the supporting Yes California group, announced the campaign was ending. Campaign officials stated that Marinelli's connection to Russia was hurting their fundraising. Marcus Ruiz Evans, former vice president of Yes California, joined the California Freedom Caucus (CFC). Ruiz Evans said the CFC hopes to have its own independence initiative proposed by May 1, 2017. Upon approval in 2018, the measure would have called on the state to hold a referendum on March 13, 2019, on whether California should declare independence from the United States. If the 2019 referendum had been approved, the California governor would have been required to request California’s admittance into the United Nations as the Republic of California. The measure would have also repealed language in the California Constitution that states "... California is an inseparable part of the United States of America, and the United States Constitution is the supreme law of the land." It’s unclear what impact this initiative would have had on the status of California as a state in the United States because no mechanism to secede exists in the United States Constitution.
    • Proponents of the initiative would have needed to submit 585,407 valid signatures by July 25, 2017, in order for it to make the 2018 ballot.
    • The Calexit campaign was ended because of fundraising difficulties, according to Ruiz Evans. In California in 2016, the cheapest initiative signature campaign cost $1.25 million and the most expensive signature petition drive cost $6.62 million. The average cost to get an initiative on the 2016 ballot in California was $2.98 million.
    • A total of $497 million was spent on campaigns in support of and opposition to the 18 statewide measures on the ballot in California in 2016.

Nevada Marsy’s Law Three-Quarters Of The Way To 2018 Ballot

  • The Nevada State Senate unanimously approved a constitutional amendment to provide a bill of rights for crime victims—a type of law commonly called Marsy’s Law. The proposal, Senate Joint Resolution 17, was approved by both chambers of the state legislature in 2015. Following the Senate’s second approval of the resolution, it now requires approval once more in the state Assembly in order to go before voters in 2018. In 2015, the Assembly voted 41-1 in favor of SJR 17. The law would establish 17 distinct rights for crime victims including the following: a right to fair and respectful treatment without intimidation, harassment or abuse; a right to the security of confidential information; a right to refuse interviews or deposition requests and set conditions on such meetings; a right to confer with the prosecuting agency; a right to be present and to be heard at all parole or release hearings; a right to be informed of any postconviction proceedings, convictions, and sentences of defendants, including when and at which prison the defendants would serve time; and a right to timely restitution and the timely return of personal property used as evidence.
    • A version of Marsy’s Law is on the 2018 ballot in Oklahoma, and proponents of Marsy’s Law are collecting signatures—due on July 5—for a 2017 initiative in Ohio.
    • Henry Nicholas, the billionaire co-founder of Broadcom Corp., started campaigning for this kind of legislation to increase the rights and privileges of victims. His national organization, Marsy's Law for All, was the primary sponsor of the original 2008 Marsy's Law in California and was behind similar 2016 initiatives in Montana, South Dakota, and North Dakota—which all passed— and legislative proposals in Georgia, Hawaii, Idaho, and other states. The legislation is named after Henry Nicholas' sister Marsy Nicholas, who was murdered by her ex-boyfriend in 1983.

Arizona Rep. Resigns To Take Position In The Trump Administration

 

Verbatim Fact Check

A Charlotte Observer editorial on repeal of North Carolina’s House Bill 2 law claimed that Gov. Roy Cooper discarded "his earlier promise not to accept any deal that left people vulnerable to discrimination." Evidence provided shows that Cooper promised to fight against discrimination and for repeal of HB 2 but not that he made promises about the nature of repeal legislation. Throughout the gubernatorial campaign and during Cooper’s first months as governor, he promised to work to repeal HB 2. He also expressed support for a full repeal, and he opposed two proposals after his election. However, Cooper also expressed a willingness to compromise on repeal legislation since his election.

 
Did Gov. Roy Cooper betray promises on HB 2 repeal?
 
 

Tuesday, April 18

Iowa Legislature Approves Abortion Legislation

  • The Iowa State Senate voted 30-20 along party lines in favor of a bill banning abortions after 20 weeks. The bill also establishes a three-day waiting period for individuals seeking an abortion. The bill allows for exceptions to the 20-week ban in cases where a doctor determines the life or health of the mother is at risk. Under this legislation, Iowa would become the 18th state in the country to ban abortions after 20 weeks and the sixth state with a three-day waiting period. According a CDC report from November 2016, 0.3 percent of abortions in Iowa occurred at 21 weeks or later in 2013. The Iowa House voted 55-42 in favor of the bill earlier this month. It now heads to Gov. Terry Branstad (R), who is expected to sign it. Iowa is currently one of 25 Republican state government trifectas.   

Kansas State Senator Appointed as Kansas State Treasurer

Special Election In The Georgia State Senate

Special Election In The Alabama House of Representatives

  • Prince Chestnut (D) won election to the Alabama House of Representatives in a special election. The District 67 seat became vacant following Darrio Melton's (D) election as mayor of Selma on October 4, 2016. In a special primary election on January 31, 2017, Chestnut advanced past three other Democrats who filed for the seat. No Republicans filed. Chestnut would have been declared the winner outright after the primary election but a third party candidate—Toby Gordon—successfully filed for the seat on January 31. Chestnut defeated Gordon, winning more than 90 percent of the vote. Republicans have a 72-32 majority, and Alabama is one of 25 Republican state government trifectas.

Wednesday, April 19

Attorneys General File Brief in Support of Blocking White House Travel Ban

Alabama Chief Justice Suspension Upheld

  • The Alabama Supreme Court upheld the suspension of Chief Justice Roy Moore for the remainder of his second term, which expires in January 2019. The suspension resulted from ethics charges filed against Moore by the Alabama Judicial Inquiry Commission alleging that Moore had violated the Alabama Canons of Judicial Ethics. The violations stemmed from Moore’s January 2016 administrative order denying probate judges the authority to issue same-sex marriage licenses until the Alabama Supreme Court reached a decision regarding the impact of Obergefell v. Hodges "on the existing orders of the Alabama Supreme Court." The Alabama Supreme Court suspended Moore for the remainder of his second term on September 30, 2016. Moore was suspended rather than removed from the bench completely because the court did not have the unanimous vote required for removal. Moore appealed the suspension on December 13, 2016, arguing that suspending him for the remainder of the term effectively removed him from the bench and should have also required a unanimous vote. A replacement justice will be elected in 2018.

North Carolina Residents and Non-Profit File Lawsuit Against the Legislature

  • Ten North Carolina residents and a non-profit filed a lawsuit against Republican leaders of the North Carolina General Assembly, challenging the legality of legislation passed by the legislature in a special session last December. The bills, which were later signed into law by outgoing Gov. Pat McCrory (R), are SB4 and HB17. SB4 increased the size of the state board of elections and altered the procedures for appointing members to the board. HB17 reduced the number of gubernatorial appointments in state government and required Senate approval for cabinet-level appointments. Gov. Roy Cooper (D), who defeated McCrory in the 2016 election, has characterized both bills as attempts to curtail his powers as governor. The lawsuit filed by the 10 North Carolina residents and Common Cause, a Raleigh-based nonprofit that describes itself on its website as a “nonpartisan organization dedicated to encouraging citizen participation in democracy,” argue that the special session in which the bills were passed violated the rights of North Carolina citizens because the public was not fully notified of the session’s agenda. The lawsuit was filed with the Wake County Superior Court. North Carolina is one of 19 states under divided government.       

West Virginia Governor Signs Medical Marijuana Bill

  • West Virginia became the 29th state in the country to legalize medical marijuana after Gov. Jim Justice (D) signed Senate Bill 386. The bill establishes a medical cannabis commission which will create a regulatory framework for medical marijuana in West Virginia. The Bureau of Public Health will begin issuing patient ID cards on July 1, 2019, for individuals suffering from a range of different conditions, including cancer and Parkinson’s disease. Licensed dispensaries will be able to provide marijuana in forms such as pills, oils, and topicals. West Virginia is one of 19 states under divided government.

Current Status Option Added To Puerto Rico Status Referendum

  • Puerto Rico Gov. Ricardo Rosselló signed a bill—Senate Bill 427— to make changes to the political status referendum slated to go before voters on June 11, 2017. Following pressure from the U.S. Department of Justice (DOJ), the Puerto Rico legislature passed a bill to add the current status of U.S. territory—often called a commonwealth—as an option in the referendum’s language. Previously the referendum provided two options: statehood and independence/free association. The bill also changed the title of the referendum from Plebiscite for the Immediate Decolonization of Puerto Rico to Plebiscite of Status of Puerto Rico. After the changes to the referendum language were official, Junte Soberanista—the campaign representing advocates of free association or independence—announced a boycott of the referendum, joining some officials affiliated with the pro-commonwealth Popular Democratic Party who had also called for a boycott.
    • The DOJ was authorized by Congress in 2014 to spend $2.5 million on “objective, nonpartisan voter education about, and a plebiscite on, options that would resolve Puerto Rico’s future political status.”
    • The DOJ sent a letter to Rosselló on April 13 that said there were problems with the original referendum that “preclude[d] it from notifying Congress that it approves of the plebiscite ballot and obligating the funds.” This led to the referendum changes.

Thursday, April 20

Federal Court Finds Texas State House Districts Were Drawn with Racially Discriminatory Intent

  • The United States District Court for the Western District of Texasruled that some of of the state house district boundaries adopted by the state legislature in 2011 were drawn with racially discriminatory intent. The court ruled 2-1 on the matter. Judges Xavier Rodriguez and Orlando Garcia comprised the court's majority; Judge Jerry Smith dissented. The same federal court issued a similar ruling pertaining to the state's congressional district boundaries in March 2017. Neither of these rulings applies directly to the remedial district maps adopted by the legislature in 2013. The 2013 maps have been in use in Texas since their enactment.
    • Rep. Rafael Anchia (D), who chairs the Mexican American Legislative Caucus, one of the plaintiffs in the case, supported the ruling: "This is yet another example of political disenfranchisement by the State of Texas against minority voters. It took nearly six years of legislative and court battles to confirm that the party in power discriminated against communities of color when drawing Texas Congressional and House of Representative maps."
    • Marc Rylander, a spokesman for Texas attorney general Ken Paxton (R), indicated that the attorney general opposed the ruling: "As 5th Circuit Judge Jerry Smith observed in his dissent, the challenge to the old 2011 maps are not only moot but a finding that racial considerations were dominant and controlling defies everything about this record. Accordingly, we are confident we will ultimately prevail in this case."

Iowa Legislature Defunds Planned Parenthood

  • In a party-line vote, the Iowa State Senatevoted 28-21 to block state funding for Planned Parenthood. The legislation is part of a $1.77 billion Health and Human Services budget bill, which seeks to establish a state family planning service that will exclude organizations that provide abortions. The bill requires the state to forego the federal Medicaid family planning network waiver, a sum of about $3 million in federal funds. The Des Moines Register reports that more than 12,000 Iowans were participating in the state’s currently-existing family planning system as of December 2016. The bill now heads to Gov. Terry Branstad (R). Iowa is currently one of 25 Republican state government trifectas.  
    • At the end of March 2017, the U.S. Senate voted to advance a measure allowing states to withhold federal funding for health care providers that perform abortions. Under an Obama-era regulation, states could not exclude a healthcare provider from receiving Title X funding for family planning and related services, like cervical cancer screenings, because it also provided abortion services. Vice President Mike Pence cast the tie-breaking vote to revoke the rule. President Donald Trumpsigned the resolution on April 13, 2017.

Florida Supreme Court Approves Ballot Language For Two Initiatives

  • The Florida Supreme Courtsigned off on the ballot title and summary of two proposed citizen initiatives: one to allow felons—except those convicted of murder or sexual offenses—to vote again after serving their sentences and one to make citizen initiatives the only way to authorize new casinos. Approval of the ballot title and summary by the state supreme court is an important step in the initiative process in Florida where the state supreme court considers whether or not the initiative complies with the state’s the single-subject rule and the appropriateness of the title and summary. Each group of initiative proponents submitted about 10 percent of the 766,200 required valid signatures and can now work on gathering the remaining signatures, which must be verified by county officials and submitted to the Florida secretary of state by February 1, 2018, in order to qualify for the November 2018 ballot.
    • Currently, no statewide measures are certified to appear on the 2018 ballot in Florida.
    • From 1996 to 2016, an average of seven measures appeared on the ballot during even-numbered years in Florida.
    • Florida is one of three states in which convicted felons never regain the right to vote (the other two states are Iowa and Kentucky). For more information about voting rights for convicted felons, see this article.

Alabama Abortion Policy Amendment Moves Closer To 2018 Ballot

  • The Alabama State Senate voted 25-7 in favor of a proposed constitutional amendment—House Bill 98—to make it the state's public policy to recognize and support "the sanctity of unborn life and the rights of unborn children, including the right to life" and to "ensure the protection of the rights of the unborn child in all manners and measures lawful and appropriate." The House approved the amendment 67-14 in March, but, since the state Senate amended the bill, the House has to vote to concur with the amendment in order to put the measure before voters in November 2018. The Senate’s amendment did not actually alter the proposed constitutional language. Rather, it added in a clause to the bill expressing the legislature's intent that the attorney general "exhaust the internal resources and personnel of the office prior to the retention of any outside counsel to assist in the defense of any constitutional challenge to this act." To refer amendments to the ballot in Alabama, both chambers of the legislature must approve the proposals with a 60 percent supermajority. Alabama is one of 25 Republican state government trifectas.
    • Currently, no statewide measures are certified to appear on the ballot in Alabama in 2018.
    • Between 1997 and 2016, an average of 8.5 measures appeared on the ballot in Alabama during even-numbered election years.

Texas Senate Passes Four LRCAs On To State House

  • The Texas State Senate approved four proposed constitutional amendments by more than the  two-thirds vote required. If the state House also approves them by a two-thirds supermajority, the amendments will go before voters on November 7, 2017. The state Senate approved three amendments unanimously, while the fourth—which would prohibit the state from paying for local public pensions—was approved with 10 Democrats voting no and all 20 Republicans plus one Democrat, Juan Hinojosa (D-20), voting yes. This gave the amendment—Senate Joint Resolution 43—exactly the required number of votes to meet the two-thirds approval requirement. In the state House, there are 95 Republicans and 55 Democrats, which means all Republicans and at least five Democrats would have to vote yes to put SJR 43 on the ballot. Texas is one of 25 Republican state government trifectas. The amendments approved by the senate were as follows:
    • Senate Joint Resolution 43: An amendment that would prohibit the state legislature from providing funds to local public retirement systems for the purpose of paying debts or obligations of the local system. The measure would also provide that the "state is not liable for any debts or other obligations" of local public retirement systems.
    • Senate Joint Resolution 60: An amendment that would make changes to the state’s laws about home mortgages and loans.
    • Senate Joint Resolution 36: An amendment that would prohibit the state from levying a tax on the sale or purchase of water at wholesale.
    • Senate Joint Resolution 34: An amendment that would require that unsalaried officials appointed by the governor with consent of the Senate cannot be in office beyond the end of the legislative session following the expiration of their terms, while currently such officials continue in office until their replacements are appointed.
      • Texas is one of 16 states that require a two-thirds supermajority to put amendments on the ballot.

Special Elections

As of this week, 15 state legislative seats have been filled through special elections in 2017. Another 31 elections have been scheduled in 17 states to fill vacancies.

Due to redistricting, additional state legislative special elections may be held in North Carolina in 2017. The special elections have been called in response to a federal court order that ruled 28 state legislative districts unconstitutional because of racial gerrymandering. The U.S. Supreme Court, however, issued an order on January 10, 2017, halting the 2017 special elections in North Carolina. The change would move elections under new maps to the regularly scheduled 2018 elections. The court is expected to decide whether to take up an appeal of this order.

  • An average of 89 seats were filled through special elections in each of the past three odd years (2011: 94, 2013: 84, 2015: 88).
  • An average of 44 seats were filled through special elections in each of the past four even years (2010: 26, 2012: 45, 2014: 40, 2016: 65).

Upcoming special elections include:

April 25, 2017

April 27, 2017

April 29, 2017

State Politics: What's On Tap Next Week

Tuesday, April 25

Special elections in the Connecticut House of Representatives

Special primary runoff election in the South Carolina State Senate

Thursday, April 27

Special Primary Election in the Tennessee House of Representatives

 
States in session
 
Map of state government trifectas
 
 

Local Politics: The Week in Review

Elections Update

  • In 2017, Ballotpedia is covering municipal elections across 54 of America's 100 largest cities by population and several of the largest counties by population, local judicial elections across six states holding elections for general and limited jurisdiction trial courts and one state holding elections for municipal jurisdiction trial courts, school board elections across 461 of the 1,000 largest school districts by student enrollment, all local recalls, all local ballot measures in California, and notable local ballot measures across the United States.
    • So far this year, Ballotpedia has covered 12 city elections, three county elections, and 79 school board elections. Ballotpedia will cover between 100 and 200 local ballot measures in California in 2017.
    • Local ballot measure elections occurred in California on January 10, February 28, March 7, March 28, April 4, and April 11. On March 7, local voters decided 22 measures; 14 measures were approved, seven were defeated, and one is too close to call with certainty until results are certified. Los Angeles city voters decided four measures, including Measure S, a development-related initiative. Measure S was defeated.
    • The next local ballot measure elections Ballotpedia will cover are on April 25 in California, May 2 in California, and May 6 in Texas.

Monday, April 17

Atlanta City Council deferred vote on marijuana decriminalization

  • The Atlanta City Council voted 10-4 to send a marijuana decriminalization proposal back to committee for further review. If passed, the ordinance would reduce the penalty for possessing one ounce of marijuana or less from criminal charges and potential jail time to a $75 ticket. The current maximum penalty for the possession of marijuana is 180 days in jail and a $1,000 fine. Supporters of decriminalization argue that the law disproportionately affects the poor and people of color, while opponents say marijuana is a gateway to other drugs. Atlanta is the largest city in Georgia and the 40th-largest city in the U.S. by population.
    • On April 3, 2017, voters in Kansas City approved a ballot measure that reduced the penalty for the possession of 35 grams or less of marijuana to a $25 ticket with no possibility of jail time. Marijuana was also removed from the prohibition against drug paraphernalia. Kansas City is the largest city in Missouri and the 37th-largest city in the U.S. by population.

Oakland Mayor announced re-election bid

  • The mayor of Oakland, Libby Schaaf (D), announced she would run for a second term in office in November 2018. Schaaf was first elected to the position on November 4, 2014, after serving for one year as a city council member. She defeated incumbent Jean Quan and 13 other candidates to secure the seat. In 2006, Oakland voters approved the use of ranked-choice voting (also sometimes called instant-runoff voting) for its elections. Oakland is the eighth-largest city in California and the 45th-largest city in the U.S. by population.

Seattle, King County approved immigration ordinances

  • The Seattle City Council unanimously approved an ordinance to create a $1 million legal defense fund for refugees and immigrants who live or work in the city. According to the city council’s website, the ordinance is a response to President Trump’s executive orders regarding immigration. The council estimated a rise in the number of immigrants and refugees seeking legal representation in court. Seattle is the largest city in Washington and the 21st-largest city in the U.S. by population.
    • Seattle is the county seat of King County. The King County Council approved a similar ordinance, which established a $750,000 support fund for refugees and residents whose citizenship status is unknown. The funds will be distributed in three main areas, according to the county council:
      • $300,000 to support legal representation in immigration proceedings
      • $100,000 to support community training on legal rights and cultural differences
      • $350,000 to develop the Resilience Fund in partnership with the Seattle Foundation. Donations to the fund will be used to support community organizations working in at-risk communities.

Filing deadline passed for New York school board seats

  • The filing deadline passed to run for 24 school board seats up for general election in eight of New York’s largest school districts by enrollment. This was the filing deadline for central, union free, and common school districts in the state. The election will be held on May 16, 2017. The school districts served a combined total of 95,506 students during the 2014-2015 school year—approximately 3.5 percent of all public school students in the state.

Tuesday, April 18

Phoenix Council approved police policy changes

  • The Phoenix City Council voted to approve an executive order updating the city’s police policies and creating a work program for refugees. The city’s previous police policy required officers to comply with Arizona’s Senate Bill 1070 (SB 1070), which regulates local immigration enforcement at the state level. The city council voted 6-3 to direct Phoenix Police Chief Jeri Williams to look for best practices in immigration enforcement policies, particularly focusing on crime victims and witnesses. Supporters said the order is a small but significant step, while opponents called it a political move. Chief Williams said she will review the order but that no changes had yet been made. In February 2017, a citizen petition sought to designate Phoenix as a sanctuary city. The petition was denied due to concerns that the designation would violate SB 1070. Phoenix is the largest city in Arizona and the sixth-largest city in the U.S. by population.
    • The order included several other provisions:
      • An affirmation that Phoenix will not participate in the federal 287(g) program to deputize local police officers for immigration enforcement
      • The police department will work with local school districts to improve the relationship between students and officers
      • The Phoenix Community and Economic Development Department will establish a workforce development program for refugees
    • Click here to read Ballotpedia’s coverage of sanctuary policy preemption conflicts between the federal government and local governments across the United States.

School board election held in California

  • A nonpartisan general election was held for two of five school board seats in the Arcadia Unified School District. At-large incumbent Fenton Eng won re-election after facing three challengers for the two available seats, and newcomer Linda Chavez won the open seat on the ballot. This was the first contested Arcadia school board election in four election cycles. The Arcadia Unified School District is the 175th-largest district in California and served 9,582 students during the 2014-2015 school year.
    • District voters also approved a parcel tax measure on March 7. The measure required a 66.67 percent majority to pass, and it was approved with 67.63 percent.

El Paso set special election date

  • The El Paso City Council set June 10, 2017, as the special election date for the open city council seat in District 8. This date is also reserved for the city’s municipal runoff elections, if necessary; the city is holding its regular general elections for mayor and four of nine city council seats on May 6, 2017. District 8 representative Cortney Niland announced her resignation from the council in early April, but she will remain in her seat until a replacement is chosen. The deadline to file to run in the race is May 1, 2017. District 8 includes portions of West El Paso, downtown El Paso, and most of South-Central El Paso. El Paso is the sixth-largest city in Texas and the 19th-largest city in the U.S. by population.

Recall election announced in New Mexico

  • The Tucumcari City Clerk announced that a recall election against three city commissioners will take place on June 13, 2017. The recall effort against mayor and commissioner Ruth Ann Litchfield (District 3) and commissioners Ralph Moya (District 1) and Amy Gutierrez (District 2) was initiated in January 2017 by a city resident due to concerns over the city's handling of property nuisance violations. A fourth commissioner—Robert Lumpkin (District 4)—was targeted for recall, but the petition did not advance because of insufficient signatures.

LAUSD Board of Education voted to support set of charter school bills

  • The Los Angeles Unified School District Board of Education voted 4-3 to support three state bills targeting charter schools. Two of the bills seek to require charter schools to follow state and federal guidelines regarding open meetings and suspension and expulsion policies. The third bill, which was pulled out of consideration for the 2017 legislative session, sought to remove a charter school’s ability to appeal to the county or state if a school board rejected a charter petition. The vote on the resolution was split between members supported by the teachers union—who voted in favor of the resolution—and members supported by charter school associations. Board President Steve Zimmer, who is running for re-election in the general election on May 16, 2017, voted in favor of the resolution. Nick Melvoin, his opponent in the race, said he opposed the resolution. District 6 candidate Kelly Fitzpatrick-Gonez also said she opposed the resolution.

Wednesday, April 19

Chicago City Council rejected ethics exemption

  • In Chicago, aldermen voted 24-21 to reject a proposed change to the city ethics code. The change would have exempted independent contractors working for aldermen from city ethics rules. Supporters of the change said the proposal was intended to correct an error introduced to the city ethics code in 2016, where city contractors were mistakenly classified as city employees. Supporters further argued that the mistake required contractors to disclose financial information that did not belong in the public realm. Opponents of the change argued that Chicago city council members have a history of using public funds to hire relatives, political operatives, and former city workers with histories of fraud. With the measure defeated, city contractors have until May 31, 2017, to file financial disclosures, including a list of all outside income sources of more than $1,000. If a contractor fails to file the disclosure, he or she may be subject to a fine of $250 per day. Chicago is the largest city in Illinois and the third-largest city in the U.S. by population.

New candidates entered Seattle’s race for mayor

  • Former Seattle Mayor Mike McGinn and urban policy advocate Cary Moon announced their intentions to challenge Mayor Ed Murray in his re-election bid. McGinn was defeated by Murray in the general election on May 5, 2013. The deadline to file in the race is May 19, 2017, and a nonpartisan primary election will be held on August 1, 2017. The top two vote-getters in the primary election will advance to the general election on November 7, 2017. Seattle will also hold elections for city attorney and two seats on the city council. Position 8 incumbent Tim Burgess is not seeking re-election. Position 9 incumbent M. Lorena González and city attorney Pete Holmes are both vying to retain their seats.

Thursday, April 20

Los Angeles Mayor speaks on state of the city, releases budget

  • Los Angeles Mayor Eric Garcetti (D) delivered his fourth state of the city address touching on budget, climate change, safety, and immigration. He laid out a $9.2 billion spending plan for the 2017-2018 fiscal year, which includes closing an estimated $263 million deficit. Garcetti urged city leaders to reduce spending and to pass a linkage fee that was proposed for the current fiscal year but that has not yet been voted on by the council. The fee, which would be paid by housing developers, could generate as much as $100 million in tax revenue. Developers opposed to the fee argue that they are already burdened with existing costs. The budget also includes funding to repair the city’s most damaged streets and to hire 75 additional firefighters. Garcetti proposed setting aside an additional $176 million to aid the homeless. The mayor pledged that L.A. would continue to address climate change under the terms of the Paris Agreement even if the city lost federal support, though he provided no further details. Garcetti reiterated his pledge to get 20,000 guns off of city streets over the next five years, and highlighted a decrease in crime this year compared to the same period in 2016. First elected in 2013, Garcetti won a new term in the primary election on March 7, 2017. Los Angeles is the largest city in California and the second-largest city in the U.S. by population.

Bernie Sanders campaigned with candidate in Nebraska

  • In Omaha, the mayoral race between incumbent Jean Stothert (R) and challenger Heath Mello (D) has attracted national attention with visits by Wisconsin Gov. Scott Walker (R) and U.S. Sen. Bernie Sanders (I) prior to the general election. Sanders campaigned with Mello, while Walker will campaign with Stothert on April 24, 2017. Stothert's campaign responded to Sanders' visit by saying, "Bernie Sanders is a self-avowed socialist and Mello's embracing him will push every conservative voter to Mayor Stothert."Mello's campaign criticized Walker's visit, saying, "Now, in a moment of desperation, the Stothert campaign is turning to an extreme Republican who has decimated public education and repealed equal pay laws." Omaha is the largest city in Nebraska and the 42nd-largest city in the U.S. by population.
    • Daily Koswithdrew its endorsement of Mello in the race on the same date. The blog said its decision was based on Mello’s support of legislation in 2009 that would require women seeking an abortion to undergo an ultrasound. At least two bills regarding abortion and ultrasounds were introduced to the Nebraska State Senate in 2009. Mello is listed as a co-sponsor on LB 675. The bill was signed into law on May 9, 2009, after it was amended to give women the option to view an ultrasound rather than requiring it. After the endorsement was withdrawn, Mello released a statement saying, “While my faith guides my personal views, as mayor I would never do anything to restrict access to reproductive health care."

What's On Tap Next Week

Tuesday, April 25

Municipal filing deadline in Michigan

  • The filing deadline will pass to run for mayor and all nine city council seats in Detroit. A primary election will be held on August 8, 2017, and the general election will be held on November 7, 2017. Detroit is the largest city in Michigan and the 18th-largest city in the U.S. by population.

New Jersey school board elections

  • Nonpartisan general elections will be held for six of 18 school board seats in two of New Jersey’s largest public school districts by enrollment.
    • The Newark Public Schools Board of Education is holding its last election before the board resumes local control of the district. The board has heldadvisory status since it was taken over by the state of New Jersey in 1995. A total of 16 candidates filed to run for three seats up for at-large election, including one incumbent. Three of these candidates make up the Newark Unity slate, which was endorsed by Newark Mayor Ras Baraka. Three other candidates have formed the Community Team slate. Following the 2016 election, all nine members of the board were Baraka-endorsed candidates who had been members of either the Children First Team or the Newark Unity slate. Newark Public Schools served 34,861 students in the 2014-2015 school year—approximately 2.5 percent of all public school students in the state.
    • In Passaic Public Schools, two school board incumbents face two challengers in their bids for re-election to three seats. Passaic Public Schools served 14,215 students during the 2014-2015 school year—approximately 1.0 percent of all public school students in the state.

Recall election in Oakdale Irrigation District

  • A recall election will take place for Linda Santos on the Oakdale Irrigation District (OID) board in Stanislaus County, California. The effort to recall Santos from her position was launched in August 2016 when Deanne Dalrymple served Santos notice of an intention to circulate a recall petition during an OID board meeting. Dalrymple read the grounds for the petition at the meeting and accused Santos of putting the interests of her friends, campaign contributors, and special interests above the interests of her constituents. One candidate—Nate Ludlow—is running to replace Santos.

Voters in Campbell, California, to decide city’s medical marijuana policy

  • Campbell voters will see three marijuana-related ballot measures, including competing measures proposed by the city council and a citizen initiative petition. Measure A would authorize a marijuana business tax of between 7 percent and 15 percent. Measure B was proposed through a citizen initiative petition and would allow up to three medical marijuana dispensaries within the city and provide for regulations on dispensaries and cultivation. Measure C was put on the ballot by the city council and would continue the city’s current moratorium on marijuana dispensaries at least until April 1, 2019, after which the city council would have full discretion over whether or not to allow dispensaries and what regulations would be put in place. Measure B and Measure C propose competing policies. If both measures receive majority approval, the measure with the most yes votes would supersede the other.

Wednesday, April 26

New York school board filing deadline

  • The filing deadline will pass to run for 11 school board seats up for general election across four of New York’s largest school districts by enrollment. This was the filing deadline for small city school districts in the state. The filing deadline for central, union free, and common school districts passed on April 17, 2017. The election will be held on May 16, 2017. The school districts served a combined total of 46,588 students during the 2014-2015 school year—approximately 1.7 percent of all public school students in the state.
 

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