Welcome to the Friday, April 26, Brew.
By: Mercedes Yanora
Here’s what’s in store for you as you start your day:
- Three states end judicial deference practices
- 2.5% of state legislative incumbents who ran for re-election have lost in primaries
- How many states require a simple majority of votes for the legislature to override a gubernatorial veto?
Three states end judicial deference practices
Lawmakers in Indiana, Nebraska, and Idaho passed bills in March 2024 to end judicial deference practices in each state. Judicial deference instructs federal or state courts to defer to administrative agencies’ interpretations of agency statutes or regulations.
On March 27 and 29, respectively, Nebraska Gov. Jim Pillen (R) and Idaho Gov. Brad Little (R) signed bills into law to end judicial deference and require courts to apply de novo review — a standard of judicial review that examines executive agency action without deference to a previous interpretation of the underlying statute in question.
On March 13, Indiana Gov. Eric Holcomb (R) signed a bill into law to end judicial deference to agency interpretations of constitutional provisions, statutes, and regulations.
Legislators based the bills on model legislation: the Judicial Deference Reform Act. The Goldwater Institute and the Pacific Legal Foundation developed the model legislation.
State courts are not required to defer to state-level administrative agencies or adopt federal deference doctrines. Thirty-five states as of 2023, however, had implemented forms of judicial deference to state administrative agencies similar to the federal deference doctrines.
Ballotpedia has identified 16 states since 2008 in which voters, courts, or lawmakers have limited or prohibited judicial deference. Many of these state-level deference practices are modeled on deference doctrines applied in the federal courts, such as Chevron deference, Skidmore deference, and Auer deference.
Four states (Arkansas, Colorado, Michigan, and Wisconsin) have eliminated or limited Chevron deference, which is an administrative law principle that requires courts to defer to an agency’s interpretation of an ambiguous statute.
Two states (Mississippi and Ohio) eliminated Chevron deference and also eliminated Auer deference, which requires courts to defer to an agency’s interpretation of an ambiguous regulation the agency wrote.
Nine states (Arizona, Florida, Idaho, Indiana, Kansas, Nebraska, Tennessee, Utah, and Wyoming) have eliminated all deference and some require de novo review. Georgia limited judicial deference by eliminating deference to certain tax regulations.
Judicial deference is one pillar of our administrative state coverage. The administrative state is a term that describes how executive branch administrative agencies exercise the power to create, adjudicate, and enforce their own rules. The other four pillars are: nondelegation, executive control of agencies, procedural rights, and agency dynamics.
You can read more stories like this in our monthly Checks and Balances newsletter by subscribing here!
2.5% of state legislative incumbents who ran for re-election have lost in primaries
So far this year, 22 state legislative incumbents — six Democrats and 16 Republicans — have lost to primary challengers. Click here to read our previous report.
Across the seven states that have held primaries, 2.5% of incumbents running for re-election have lost, which is less than at this point in 2022 (4.1%).
Republican incumbents have lost at a higher rate than Democrats. Of the 483 Republican incumbents who ran for re-election, 16 (3.3%) have lost to primary challengers. For Democrats, six of the 411 who ran for re-election (1.5%) have lost.
Pennsylvania held the most recent state legislative primary elections on April 23. No incumbents in the Senate were defeated, but two challengers defeated incumbents in the House, representing the second-lowest number of Pennsylvania House incumbents defeated since Ballotpedia began gathering data in 2010.
The defeated incumbents were:
- James Gregory (R) – House District 80
- Kevin Boyle (D) – House District 172
The only other year with fewer incumbent defeats was 2010 with one Republican defeated. Conversely, a decade-high of 10 incumbent primary defeats occurred in 2022.
The Democratic primary in House District 10 between Rep. Amen Brown, Sajda Blackwell, and Cass Green, and the Republican primary in House District 117 between Rep. Michael Cabell and Jamie Walsh were too close to call as of April 25.
In addition to the two incumbents defeated in primary elections, 14 incumbents — five Democrats and nine Republicans — did not seek re-election, meaning at least 16 newcomers will be elected to the 203-member chamber in November.
Democrats currently hold a 102-100 majority in the chamber. There is one vacancy. Ninety-six Democratic incumbents and 90 Republican incumbents are slated to appear on general election ballots in November.
Of the seven states that have held primaries so far, two have Democratic trifectas, three have Republican trifectas, and two have a divided government.
#FridayTrivia: How many states require a simple majority of votes for the legislature to override a gubernatorial veto?
In the Tuesday Brew, we looked at a recent story in which the Republican-controlled Kentucky Legislature voted to override Gov. Andy Beshear’s (D) veto of a bill. The bill, HB 622, removed the governor’s authority to fill U.S. Senate vacancies.
All 50 state legislatures can override gubernatorial vetoes, but the number of required votes varies by state. In Kentucky, lawmakers need a simple majority in both chambers. But in other states, lawmakers may need votes from two-thirds or three-fifths of members.
How many states require — like Kentucky — a simple majority to override a gubernatorial veto?
