March 6, 2019

Welcome to the Wednesday, March 6 Brew. Here’s what’s in store for you as you start your day:

1. Arizona Senate approves constitutional amendment creating a lieutenant governor in the state
2. Department of Justice asked U.S. Supreme Court to narrow Auer deference
3. Two U.S. House special elections come into clearer focus

Arizona Senate advances constitutional amendment creating a lieutenant governor in the state

On Monday, the Arizona State Senate approved a constitutional amendment that would create the position of lieutenant governor in the state. If the measure is approved by the state House, the constitutional amendment would be put before voters in the November general election in 2020. Arizona is one of five states that do not have a lieutenant governor; the others are Maine, New Hampshire, Oregon, and Wyoming.

The amendment would require gubernatorial candidates to select a running mate at least 60 days before the general election (unless the legislature sets a different date), and the two would be elected on a joint ticket. The measure would take effect starting with the state’s gubernatorial election in 2026.

Currently, the Arizona Secretary of State is first in the line of succession to succeed the governor should a vacancy occur. This amendment would change that and make the lieutenant governor the first in the line of succession. Since 1912, when Arizona became a state, the secretary of state has succeeded the governor due to a vacancy on six occasions. Two of them—in 1988 and 2008—resulted in a change in partisan control of the governor's office.

All 17 Senate Republicans supported the amendment, while Democrats were divided, with six supporting and seven opposing the measure. In the House, 31 votes are needed to approve the amendment and place it on the ballot next year. Currently, Republicans hold 31 seats in the House, and Democrats hold 29.

Arizona voters rejected two previous ballot measures to establish the position of lieutenant governor. In 1994, 65.3 percent of voters rejected Proposition 100, which would have created the additional office of lieutenant governor. In 2010, 59.2 percent of voters rejected Proposition 111, which would have replaced the secretary of state with the lieutenant governor. Both measures, like the current one, would have specified that the lieutenant governor is elected on a joint ticket with the governor.

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Department of Justice asked U.S. Supreme Court to narrow Auer deference

The Supreme Court has heard 49 cases this term and issued opinions in 14 of them. One case which will be heard later this month is Kisor v. Wilkie. At issue is whether the Supreme Court should overturn what is known as Auer deference. Not to be confused with Chevron deference, Auer deference requires that federal courts yield to agency interpretations of ambiguous regulations made by the same agency unless the interpretation is plainly wrong or is inconsistent with the regulations.

In its brief filed on February 25, the Department of Justice (DOJ) asked the court to limit, but not throw out, Auer deference. It argued that reviewing courts should be able to question unreasonable agency interpretations of regulations. The brief also said that courts should only defer to agency interpretations that were issued with fair notice to those subject to the relevant regulations, that were consistent with prior agency views, that rested on agency expertise, and that represented the considered view of the agency and not the view of a low-level employee.

The principle now known as Auer deference was first described in Bowles v. Seminole Rock & Sand Co. in 1945 and was established by Auer v. Robbins in 1997. Although the Department of Justice seeks to limit Auer, it argued that it should not be overturned for the following reasons:

• Auer deference has been part of administrative law for decades (regulated parties have relied on decisions based on Auer to conduct their business).
• Narrowing Auer deference would cause less disruption than overturning it.
• Eliminating Auer deference would undermine the certainty and predictability of the regulatory environment because agency guidance would become less reliable.
• Auer deference promotes political accountability for regulatory policy and uniformity in federal law.
• Auer deference respects the scientific and technical expertise of agencies.

The U.S. Supreme Court is set to hear oral arguments in Kisor v. Wilkie on March 27, 2019. Learn more about Auer deference and other topics like it in The Checks and Balances Letter, Ballotpedia’s monthly newsletter which provides updates related to the separation of powers, due process and the rule of law. Click the link below to read our most recent edition.

Two U.S. House special elections come into clearer focus

Earlier this week, we learned the timetable for one upcoming congressional special election and Republicans selected their nominee for another one.

On Monday, the North Carolina State Board of Elections set the schedule for the upcoming special election in the state’s 9th Congressional District. Last month, that board voted unanimously not to certify the 2018 election results and to require a new election for the seat after conducting hearings regarding absentee ballot fraud in two counties in the district.

The filing deadline to run in the 9th District special election is less than 10 days away—March 15, 2019—and primaries are scheduled for May 14, 2019. There are two possible schedules beyond that, depending on whether a primary runoff is required.

If no candidate receives more than 30 percent of the vote in either party primary, runoff elections will take place on September 10, 2019. In this case, the general election will be held on November 5, 2019. However, if no primary runoffs are held, the general election will be held on September 10, 2019. North Carolina is one of nine states that requires a primary runoff election if no candidate receives a specific share of the vote.

Meanwhile, on Saturday, Republicans held a party nominating convention to select their nominee for the upcoming special election in Pennsylvania's 12th Congressional District. State Rep. Fred Keller (R) was chosen after four rounds of voting from a field of 14 candidates. College professor Marc Friedenberg (D), who was his party’s nominee in the 2018 general election, was unopposed for the Democratic nomination.

The 12th Congressional District seat is vacant following the resignation of former Rep. Tom Marino (R) on January 23, who resigned to take a job in the private sector. The special election will take place on May 21, 2019.