Welcome to this weekend! In case you have not heard yet, we launched a newsletter to keep you in the know about the various paths to recovery towns, cities, and states are taking following their initial coronavirus responses. In Documenting America's Path to Recovery, we outline the plans being put forward and curate the ongoing debates. One click to subscribe here. Check out this week's top federal stories below.

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Voters to decide special elections in California’s 25th and Wisconsin’s 7th Congressional Districts

• Two special elections will be decided on Tuesday. Christy Smith (D) and Mike Garcia (R) are running in California’s 25th Congressional District to fill the vacancy left by Katie Hill (D), who resigned her seat on November 1, 2019, amid allegations that she violated the official congressional code of conduct by engaging in sexual relationships with staffers. Tom Tiffany (R) and Tricia Zunker (D) are running in Wisconsin's 7th Congressional District to replace Sean Duffy (R). Duffy left office in September 2019 in anticipation of the birth of a child with health complications.
  
  
• In response to the coronavirus pandemic, California Gov. Gavin Newsom (D) signed an executive order directing local election officials in the 25th District to send mail-in ballots to all eligible voters. Newsom also encouraged officials to make in-person voting available on or before Election Day. Wisconsin Gov. Tony Evers (D) said no changes would be made to the 7th District special election in response to the coronavirus pandemic.
  
  
• Special elections to Congress occur when a member resigns, dies, or is removed from office. State laws governing vacancies determine when special elections are held. After May 12, six special elections will have been held during the 116th U.S. Congress—the current meeting of the Senate and House of Representatives. Three such elections were held in 2019, one has been held in 2020 so far, and three more are scheduled during the rest of this year.
  
  
• Voters decided 136 congressional special elections between 1985 and 2012—19 in the Senate and 117 in the House of Representatives. In those elections, nine seats changed partisan hands, with Republicans gaining six seats and Democrats gaining three.

Federal judge orders New York to reinstate Democratic presidential preference primary

• Judge Analisa Torres, of the United States District Court for the Southern District of New York, ordered the New York State Board of Elections to reinstate the Democratic presidential preference primary on June 23. The board had canceled the primary April 27.
   
• In her ruling, Torres wrote, writing, "[T]he removal of presidential candidates from the primary ballot not only deprived those candidates of the chance to garner votes for the Democratic Party's nomination, but also deprived their pledged delegates of the opportunity to run for a position where they could influence the party platform, vote on party governance issues, pressure the eventual nominee on matters of personnel or policy, and react to unexpected developments at the Convention." The full text of the order can be accessed here.
  • The elections board drew its authority to cancel the primary from a law enacted earlier in April that authorized the body to remove candidates from ballots upon the suspension or termination of their campaigns. 
     
  • The next day, Andrew Yang, a former candidate for the Democratic presidential nomination, filed a lawsuit against the board.  Several candidates for New York's delegation to the Democratic National Convention joined Yang as plaintiffs in the lawsuit that resulted in the May 5 order. 
     
  • The New York State Board of Elections has appealed the district court’s decision.

Supreme Court issues rulings on cases involving Bridgegate and the promotion of noncitizens immigrating to the U.S. without legal permission

• On May 7, the Supreme Court of the United States (SCOTUS) issued rulings in two cases argued during its October 2019 term. The court has issued 31 decisions this term.
  
  
• The case: Kelly v. United States concerned a scheme to reduce local traffic lanes on the George Washington Bridge as retaliation after Fort Lee's mayor refused to endorse New Jersey Governor Chris Christie's (R) 2013 re-election bid. The scheme is known as Bridgegate. The case originated from the U.S. Court of Appeals for the 3rd Circuit and was argued on January 14, 2020.
  
  • The issue: Whether the defendants committed property fraud.
  • The outcome: In a unanimous ruling, the court reversed the 3rd Circuit's decision, overturning Kelly's and Baroni's convictions on counts of wire fraud and fraud from federally funded programs. The court held Kelly and Baroni could not have violated the federal program fraud or wire fraud laws because their actions were regulatory in nature and did not seek to obtain money or property. Justice Elena Kagan delivered the opinion.

• The case: United States v. Sineneng-Smith concerned 8 U.S.C. §1324, which makes it a federal felony to "encourag[e] or induc[e] an alien to come to, enter, or reside in the United States, knowing or in reckless disregard of the fact that such coming to, entry, or residence is or will be in violation of the law." The case originated from the U.S. Court of Appeals for the 9th Circuit and was argued on February 25, 2020.
  • The issue: "Whether the federal criminal prohibition against encouraging or inducing illegal immigration for commercial advantage or private financial gain, in violation of 8 U.S.C. 1324(a)(1)(A)(iv) and (B)(i), is facially unconstitutional."
  • The outcome: The court vacated the judgment of the 9th Circuit and remanded the case in a 9-0 ruling. The court held that the 9th Circuit's departure from the principle of party presentation, as set forth by Greenlaw v. United States (2008), constituted an abuse of discretion.
• The party presentation principle is a legal principle where parties frame the issues for decision and courts generally serve as neutral arbiters of matters the parties present. In this case, the Supreme Court held that the 9th Circuit reached to decide a question that was not raised by the respondent in the case.

Delaware postpones presidential preference primary for second time

• Delaware Gov. John Carney (D) announced the further postponement of the state's presidential primary, this time to July 7. Carney first postponed the presidential primary—originally scheduled to take place on April 28—to June 2. He also announced that the state would mail absentee ballot applications automatically to all eligible voters in the primary.
  
  
• Delaware is one of 20 states that have postponed state-level elections in response to the COVID-19 outbreak. For a complete rundown, see this article.

Biden wins Kansas' Democratic presidential primary

• Former Vice President Joe Biden (D) won the Kansas Democratic Party primary, which was conducted entirely via mail-in ballot. Ballots were due on May 2.
  
  
• Biden and three withdrawn candidates appeared on the ballot, which used ranked-choice voting. Biden received 29 pledged delegates, and Bernie Sanders received 10. 
  
  
• In the ranked-choice voting process, voters could rank their top five choices rather than selecting just one candidate. When ballots were counted, each voter's first-choice vote was tallied and the last-place candidate was eliminated. In the next round of tallying, votes for the eliminated candidate were redistributed to their voters' next-favorite choice. The process continued until every remaining candidate had at least 15% support according to the tallies.
  
  
• The Kansas Democratic Party announced on March 30 that the primary would not be conducted in-person due to the coronavirus pandemic.
  
  
• The Kansas Republican Party announced in September 2019 that it would not hold a presidential caucus.

Supreme Court to hear oral arguments via teleconference for six cases 

• The U.S. Supreme Court will hear six hours of oral arguments over three days next week. The court is using new procedures, conducting oral arguments via conference call after it postponed hearing these cases in March and April due to the coronavirus outbreak.
   
• The case: McGirt v. Oklahoma concerns the Indian Major Crimes Act and will be heard on May 11. 
  • Background: A jury in Oklahoma's Wagoner County District Court found Jimcy McGirt guilty of three counts of sex crimes. He was sentenced to 500 years in prison and life in prison without parole. McGirt appealed to the Oklahoma Court of Criminal Appeals, the state's court of last resort for criminal matters. The court denied his petition for review. McGirt appealed to the U.S. Supreme Court, arguing the Oklahoma courts lacked jurisdiction to hear his case because of his membership in the Seminole/Creek Nations of Oklahoma and because the alleged crimes occurred in Indian Country.
     
  • The issue (from SCOTUSblog): "Whether the prosecution of an enrolled member of the Creek Tribe for crimes committed within the historical Creek boundaries is subject to exclusive federal jurisdiction."
     
• The case: Our Lady of Guadalupe School v. Morrissey-Berru concerns how courts should decide when an employee is a "minister" for purposes of the "ministerial exception" recognized under Hosanna-Tabor Lutheran Church and School v. EEOC (2012). It is consolidated with St. James School v. Biel. The court will hear arguments on May 11. 
  • Background: In both cases, two teachers at Catholic schools did not receive offers to renew their contracts. Both teachers filed discrimination claims against their former employers in the U.S. District Court for the Central District of California. The district court ruled that the claims were barred by the ministerial exception to the First Amendment, meaning both schools are protected religious organizations exempted from anti-discrimination employment laws.
    
    Both teachers appealed to the 9th U.S. Circuit Court of Appeals. The 9th Circuit reversed the district court's ruling in Our Lady of Guadalupe School v. Morrissey-Berru and denied a petition for rehearing and for rehearing en banc in St James School v. Biel.
     
  • The issue: "Whether the First Amendment's religion clauses prevent civil courts from adjudicating employment-discrimination claims brought by an employee against her religious employer, when the employee carried out important religious functions."
     
• The case: Trump v. Mazars USA concerns Congress' right to issue subpoenas to the president's accountants and creditors. It is consolidated with Trump v. Deutsche Bank AG and will be heard on May 12.
  • Background: In both cases, certain U.S. House committees issued subpoenas requesting financial documents. One subpoena was issued to President Donald Trump's (R) accounting firm, Mazars USA, LLP ("Mazars"). Two others were each issued to Deutsche Bank and the Capital One Financial Corporation.
    
    The president, acting in his individual capacity, challenged the subpoenas' validity in federal district court. In each case, the district court ruled in favor of the U.S. House committees. The president appealed to federal circuit courts, which upheld the district courts' decisions in both cases.
     
  • The issue:  "Whether the U.S. House Oversight and Reform Committee, Financial Services Committee, and Intelligence Committee have the 'constitutional and statutory authority to issue' subpoenas to President Trump's accountant and to the president's creditors 'demanding private financial records belonging to the president.'"
     
• The case: Trump v. Vance concerns the question of presidential immunity. It will be heard on May 12.
  • Background: In 2019, New York County District Attorney Cyrus Vance (D) opened an investigation into President Trump's business dealings. Vance issued a subpoena to the president's accounting firm, Mazars USA, LLP ("Mazars"). The president challenged the subpoena in the U.S. District Court for the Southern District of New York, arguing the subpoena violated presidential immunity. The district court dismissed the president's complaint.
    
    On appeal, the 2nd U.S. Circuit Court of Appeals vacated the district court's dismissal of the complaint and affirmed the district court's denial of a preliminary injunction. The president appealed to the U.S. Supreme Court.
     
  • The issue: "Whether a grand-jury subpoena served on a custodian of the president’s personal records, demanding production of nearly 10 years' worth of the president’s financial papers and his tax returns, violates Article II and the Supremacy Clause of the Constitution."
    
    Article II of the U.S. Constitution details the executive branch of the government. The Supremacy Clause (Article VI, Paragraph 2 of the U.S. Constitution) provides that the Constitution and federal law take precedence over state constitutions and laws.
     
• The case: Chiafalo v. Washington concerns a Washington state law on presidential electors who vote contrary to state laws. It will be heard on May 13.
  • Background: Levi Guerra, Esther John, and Peter Chiafalo were state-appointed presidential electors in the 2016 presidential election. The electors voted contrary to Washington State's laws requiring that they cast their electoral college ballots for the winner of the popular vote. The Washington secretary of state fined the appellants $1,000 each for failing to vote for the nominee of their party. Electors who do not vote for their party’s nominee are known as “faithless electors.”
    
    The electors appealed the penalties, challenging their constitutionality. After litigation in state courts, the Washington Supreme Court affirmed the trial court's ruling upholding the fines.
     
  • The issue (from SCOTUSblog): "Whether enforcement of a Washington state law that threatens a fine for presidential electors who vote contrary to how the law directs is unconstitutional because a state has no power to legally enforce how a presidential elector casts his or her ballot and a state penalizing an elector for exercising his or her constitutional discretion to vote violates the First Amendment."
     
• The case: Colorado Department of State v. Baca concerns a Colorado state law on presidential electors who vote contrary to state laws. It will be heard on May 13.
  • Background: Micheal Baca, Polly Baca, and Robert Nemanich were state-appointed presidential electors in the 2016 presidential election. Colorado law requires the state’s presidential electors to cast their votes for the winner of the popular vote in the state for the offices of president and vice president. 
    
    After Micheal Baca cast his vote for John Kasich, Colorado’s secretary of state removed him as an elector, discarded his vote, and replaced him with an elector who cast her vote for Hillary Clinton. According to the lower court opinion, "After witnessing Mr. Baca’s removal from office, Ms. Baca and Mr. Nemanich voted for Hillary Clinton despite their desire to vote for John Kasich." 
    
    The electors filed a civil action against the Colorado Department of State. The U.S. District Court for the District of Colorado dismissed the suit. On appeal, the 10th U.S. Circuit Court of Appeals affirmed the district court's dismissal of Polly Baca and Robert Nemanich's claims but reversed the district court's decision related to Michael Baca. The court determined that the nullification of Baca's vote and his removal from office were unconstitutional.
     
  • The issues: (1) Whether a presidential elector who is prevented by their appointing State from violating state law in casting their Electoral College ballot lacks standing to sue their appointing State because they hold no constitutionally protected right to exercise discretion. 
    (2) Does Article II or the 12th Amendment forbid a State from requiring its presidential electors to follow the State's popular vote when casting their Electoral College ballots?

Federal judge approves settlement suspending witness requirement for absentee voting in Virginia's June 23 primary

• Judge Norman Moon of the United States District Court for the Western District of Virginia approved a settlement between the parties in League of Women Voters of Virginia v. Virginia State Board of Elections. The settlement resulted in the suspension of the witness requirement for absentee voting in the state’s June 23 primary.
   
• Virginia is one of 26 states that have made modifications to their absentee/mail-in voting procedures in response to the COVID-19 outbreak. For a complete rundown, see this article. 

Extended candidate filing period for congressional races passes in Michigan, pending state guidance

• The court-ordered extended filing deadline to run for congressional offices in Michigan passed on May 8, pending guidance from state election officials. On April 20, a federal district court judge ordered Michigan officials to reduce petition signature requirements and extend the original April 21 filing deadline to May 8 for certain offices, due to the obstacles to signature-gathering that prospective candidates faced during the COVID-19 pandemic.
  
  
• Michigan appealed the district court’s order, and on May 5 the U.S. Court of Appeals for the Sixth Circuit partially overturned the district court’s ruling. The appellate court held that the district court erred in mandating new election requirements to the state and directed the state to select its own modifications to ensure fair ballot access.  Although the appeals court agreed that the original requirements were unconstitutional, it found that the lower court had exceeded its authority in mandating new requirements to the state. 
  
  
• The appeals court directed the state "to select its own adjustments so as to reduce the burden on ballot access, narrow the restrictions to align with its interest, and thereby render the application of the ballot-access provisions constitutional under the circumstances." At the time of publication, Michigan officials have not indicated what, if any, modifications they will make nor whether the congressional filing deadline will be affected.
  
  
• The district court's original order, issued on April 20, reduced petition signature requirements for select primary election candidates and extended the filing deadline from April 21 to May 8. The order applied only to candidates for offices without a filing-fee option. This included U.S. Senate and U.S. House candidates. 
  
  
• To date, 12 states have made modifications to their candidate filing procedures in response to the COVID-19 outbreak. For a complete rundown, see this article. 
  
  
• The original order applied to prospective candidates in Michigan filing for the following congressional offices:
• U.S. Senate (1 seat)
• U.S. House (14 seats)
  
  
• Michigan’s primary is scheduled for August 4, and the general election is scheduled for November 3, 2020.

Filing period for congressional candidates to end in Washington state

• The filing deadline to run for elected office in Washington is on May 15, 2020. In Washington, prospective candidates may file for all 10 of the state’s U.S. House seats. 
  
  
• The primary is scheduled for August 4, and the general election is scheduled for November 3, 2020.
  
  
• Heading into the election, the Democratic Party holds both U.S. Senate seats and seven of the 10 U.S. House seats from Washington. The U.S. House has 233 Democrats, 196 Republicans, one Libertarian, and five vacancies. All 435 seats are up for election. A majority in the chamber requires 218 seats.
  
  
• The next statewide filing deadline of the 2020 election cycle is on May 28 in Vermont. 

Nebraska to hold congressional primaries

• The congressional primary for Nebraska is on May 12, 2020. Every registered voter received an absentee ballot application by mail as a result of the coronavirus (COVID-19) pandemic. In-person locations are expected to remain open as planned.  There is one seat in the U.S. Senate and three seats in the U.S. House up for election

• Candidates are competing to advance to the general election scheduled for November 3, 2020.
  
  
• Nebraska’s primary is the ninth statewide primary to take place in the 2020 election cycle. The next primary is on May 19 in Oregon.

Deadline passes for Massachusetts congressional candidates to file nomination petitions with local officials

• On May 5, the local filing deadline passed to run for elected federal offices in Massachusetts. Candidates filed for the following offices: 
• One U.S. Senate seat
• Nine U.S. House seats

• To appear on the ballot in Massachusetts, prospective candidates must submit nomination papers for certification to the registrars of the cities or towns in which signatures were collected and to the Secretary of the Commonwealth. The local filing deadline must occur four weeks prior to the candidate's second, state-level filing deadline with the Secretary of the Commonwealth. In 2020, the local filing deadline was May 5 and the state-level filing deadline is June 2. 

• The primary is scheduled for September 1 and the general election is scheduled for November 3, 2020.

• Massachusetts' statewide filing deadline was the 37th to take place in the 2020 election cycle. The next statewide filing deadline is on May 8 in Michigan.

Is Congress in session?

• The Senate will be in session next week starting on Monday, May 11. The House is not scheduled to be in session, though this is subject to change. Click here to see the full calendar for the second session of the 116th Congress.

Where was the president last week?

• On Monday, Trump had no public events scheduled.
• On Tuesday, Trump traveled to Phoenix, Arizona to tour a Honeywell International, Inc. mask production facility.
• On Wednesday, Trump had lunch with the Vice President and met with Governor of Iowa Kim Reynolds.
• On Thursday, Trump met with Governor of Texas Greg Abbott and delivered remarks with the First Lady at the White House National Day of Prayer Service.
• On Friday, Trump and the First Lady visited the World War II Memorial.

What's the latest with the federal judiciary?

• 83 federal judicial vacancies
• 47 pending nominations
• 6 future federal judicial vacancies

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