Over the past year, states have issued hundreds of rule changes in response to the coronavirus pandemic, covering issues from public health and safety to business protocols to election procedures.
But one consequence of some of these emergency orders has been a shift in the balance of power at the state level. Ballotpedia reported Thursday that eight states have seen the governor's authority weakened by Covid-related legislation.
Governors generally have the authority to declare a state of emergency in cases of natural disasters, disease epidemics and other threats to public health. And in the early days of the pandemic, nearly all states issued lockdown or stay-at-home orders.
But in the months following, some states saw conflict between the executive and legislative branches on how to proceed with the orders. Lawmakers introduced hundreds of bills to limit gubernatorial emergency powers, and ultimately 10 were enacted in eight states.
Surprisingly, in most of those eight states, the same political party controlled the governorship and the legislature. Three were run by Republicans: Arkansas, Ohio and Utah. Two were Democratic: Colorado and New York. And the remaining three have Democratic governors and Republican-majority legislatures: Kansas, Kentucky and Pennsylvania.
Here is a rundown of how these eight states have placed new limits on the governor's emergency powers authority:
Last month, the Legislature passed and Gov. Asa Hutchinson signed legislation that limits statewide emergency declarations to 60 days unless extended by the governor. The new law also allows lawmakers to block any state of emergency extensions made by the governor.
Last summer, the General Assembly passed and Gov. Jared Polis signed a bill that requires the governor to communicate with and provide information to state lawmakers following an emergency declaration.
Two new laws regarding emergency powers have been enacted in the last year in Kansas. The first, approved last summer, extended the coronavirus state of emergency, while banning Gov. Laura Kelly from declaring any new states of emergency in 2020 without first receiving approval from the state finance council. The law also limits how long the governor can close businesses and terminates emergency proclamations after 15 days unless extended by the Legislature.
The second measure also extended Kansas's state of emergency, while further limiting the governor's emergency powers. It allows anyone burdened by executive order, school board policy or county health directive to file a civil action in court, which must be heard within 72 hours. The law also empowers the Legislative Coordinating Council to override gubernatorial executive orders.
In February, the Republican-majority General Assembly enacted two new restrictive bills by voting to override Democatic Gov. Andy Beshear's vetoes. The first law limits a governor's emergency orders to 30 days unless extended by the legislature. It also requires the governor to receive approval from the attorney general before suspending a statute via executive order during an emergency.
The second law grants legislative committees more oversight of the governor's emergency regulations and requires public input for some orders.
Last month, the Legislature and Gov. Andrew Cuomo approved a new law that repeals a provision of a law passed last year that extended the governor's executive order powers during a pandemic. The new law also allows the Legislature to revoke any executive order through concurrent resolution. It also requires the governor to create a searchable website that tracks all executive actions made during a pandemic.
The Legislature voted last month to override Gov. Mike DeWine's veto of a bill that restricts the governor's authority over public health orders. The new measure allows the Legislature to cancel public health orders after 30 days and requires the governor to renew such orders every 60 days. It also establishes a legislative panel overseeing the governor's public health orders.
Last summer, the Pennsylvania General Assembly enacted a law prohibiting the governor from directing agencies to ignore public records requests during states of emergency. At the time, Democratic Gov. Tom Wolf said he disagreed with the bill, but would "err on the side of transparency" and allow it to become law without his signature.
A constitutional amendment related to emergency declarations was also certified for the May 18 ballot. If approved by voters, the amendment would limit the governor's emergency declarations to 21 days unless the legislature extends them. It would also allow the General Assembly to pass a resolution, without needing the governor's signature, to extend or terminate an executive order during an emergency.
Last summer, the Legislature and Gov. Gary Herbert approved a measure that requires the governor to notify the legislative pandemic response team within 24 hours of taking any executive actions in response to a public health crisis, unless there is imminent threat to life or property. The law also allows the Legislature to issue a joint resolution to block any pandemic executive actions.
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Republican lawmakers have turned back efforts to make no-excuse absentee voting a permanent fixture in New Hampshire.
On Thursday, the GOP-led state Senate voted along party lines to reject a bill that would have eliminated the excuse requirement to vote by mail.
During the 2020 election, all 1.1 million New Hampshire voters were able to request an absentee ballot due to the Covid-19 pandemic. Democratic lawmakers had hoped to make voting by mail a fixed option in future voting.
With the legislation now dead, New Hampshire will return to the absentee voting rules it employed prior to the pandemic. In order to qualify for a mail ballot, voters must have one of these excuses: an absence from their city or town on Election Day, a religious observance, a disability or illness, or an employment commitment, including caregiving, during the entire in-person voting period.
Expanding absentee eligibility to everyone last year gave voters the convenience and flexibility to choose whatever voting method was best for them, proponents of the bill said. One-third of the more than 814,000 ballots cast by New Hampshirites in the 2020 election were by mail.
Senate Democratic Leader Donna Soucy said because mail voting was so widely used, she's concerned some voters have come to expect the no-excuse policy as the norm.
"Now that we experienced the largest election in our state's history, and have accommodated all of these voters, why would we now go back and tell them that this process doesn't make sense anymore?" she said.
But Republican lawmakers maintain that the state's current law is "adequate" and allows plenty of opportunities for people to vote absentee.
"Give me an example that we don't cover that isn't a person who is just too lazy to go to the poll on Election Day," said GOP Sen. James Gray.
Currently, 34 states and Washington, D.C., allow for no-excuse absentee voting, and during the 2020 election, all but five states expanded eligibility. Now, state lawmakers across the country are considering hundreds of bills to reform the election process, with Democrats largely in favor of expanding access and Republicans pushing for restrictions.
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More bad news for democracy defenders: A new report confirms worldwide declines in freedom for the 15th year in a row, and the United States isn't helping matters.
Freedom House, a nonpartisan research organization, on Wednesday released its annual report, Freedom in the World, detailing how global democracy was further weakened by the Covid-19 pandemic, economic and physical insecurities and violent conflict. While the United States is still considered "free," the country's score has continued to decline over the last decade, dropping 3 points in 2020 alone.
Countries were graded based on the political rights and civil liberties enjoyed by their populace, rather than government performance. This report is the latest in a series of studies calling attention to global issues involving democracy and corruption.
America's democratic integrity took serious hits from the contentious 2020 election, which was plagued by disinformation and attempts to undermine the results, led by former President Donald Trump. The country's response to the pandemic and instances of police violence against protestors advocating for racial justice also negatively impacted its score, per the report.
As a result, the U.S. scored an 83 out of 100, its lowest score to date and an 11-point drop since 2010.
"Only a serious and sustained reform effort can repair the damage done during the Trump era to the perception and reality of basic rights and freedoms in the United States," the report concluded.
Overall, 73 of the 195 countries analyzed in the report received lower freedom scores in 2020 than the year prior. Only 28 nations saw improvements. (The 94 remaining countries didn't have any significant changes.) This difference in the number of countries that improve versus worsen — the so-called "democracy gap" — has been growing over the last 15 years and saw its widest rift last year.
The 2020 report labeled 82 countries as "free," which is the fewest since 2005 and they account for less than 20 percent of the world's population. Meanwhile, the number of countries considered "not free" reached an all-time high of 54. And 59 countries were considered "partly free."
While Freedom House noted many losses for freedom last year, the report also recognized the resiliency of democracy and the many people around the world committed to fighting for it.
"Our report concludes that democracy today is beleaguered but not defeated," said Freedom House President Michael Abramowitz. "Its adversaries have grown more powerful, making the world a more hostile environment for self-government, but its enduring appeal among ordinary people — which we've already seen this year in places like Russia and Myanmar — bode well for the future of freedom."
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At a time when democracy feels most fragile, in the wake of a divisive election fueled by disinformation and an insurrection at the Capitol, two good-government groups have a new proposal for restoring trust in democracy.
The Alliance for Securing Democracy and the Center for Democracy and Technology released a report Tuesday urging President Biden to establish a bipartisan commission dedicated to restoring the public's trust in elections and democracy. It would build off work done by a similar election commission created in 2013 under President Barack Obama.
Ideally the Biden administration would form this new commission as soon as possible so its members could make recommendations ahead of the 2022 midterms. The report suggests allowing at least six months for the commission to collect its findings, although more time may be needed given the Covid-19 pandemic.
"Our elections last year were remarkably well run considering the circumstances and yet there is a large segment of the population that feels, without evidence, that the election was not legitimate, so we can't afford to dither. We need to get to work right away," said David Levine, co-author of the report and elections integrity fellow at the Alliance for Securing Democracy.
The report urges Biden to issue an executive order to create the Presidential Commission on Election Resilience and Trust, charged with identifying best practices "to improve understanding of the electoral process and promote voter confidence so that more people across the political spectrum recognize elections as legitimate."
The commission's membership would be bipartisan and include representatives from both the public and private sectors. Members would also reflect a diverse set of racial and ethnic groups since marginalized communities are disproportionately affected by election disinformation and voter intimidation, according to the report. It doesn't specify how many people should serve on the commission. (Obama's Presidential Commission on Election Administration had 10 members.)
The report recommends the commission focus on three topics to start:
- Best practices for bolstering trust in elections, such as more widespread adoption of robust post-election audits, which can increase voter confidence in election outcomes regardless of who wins.
- Best practices for countering false information from foreign and domestic actors that undermines confidence in election integrity.
- How and whether to make permanent some of the administrative and policy changes state and local officials made in response to the coronavirus pandemic, such as expanding absentee and in-person early voting, among other changes.
The proposed commission should also hold publicly accessible meetings, available via livestream amid the pandemic, so that stakeholders and members of the public can provide feedback and testimony, the report says.
Restoring the public's faith and trust in elections won't be an easy feat, but "there are plenty of reforms that we already know we need, like the expanded use of risk-limiting audits," said William T. Adler, co-author of the report and senior technologist on elections and democracy at the Center for Democracy and Technology. "There are other reforms that we need to study and build consensus around. That will take time, and we need to get started right now."
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