What to Know in Washington: States Speed Redistricting Suits

By Michaela Ross and Brandon Lee

State courts juggling election priorities are speeding redistricting cases and frustrating lawyers looking to allege illegal gerrymandering. In Washington, the Biden administration is preparing guidance for private health plans and at-home Covid-19 test reimbursement, and meeting pushback from industry.

Here’s what Bloomberg Government is tracking for Friday.

Congressional Schedule:

  • The Senate meets at noon, but no votes are scheduled until Monday.
  • The House is not in session, and returns on Monday.

Biden’s Agenda:

  • Biden will speak at 10:45 a.m. on the December jobs report. The report is projected to show that employers added 433,000 workers at the end of 2021, the median estimate in a Bloomberg survey of economists. The labor force participation rate is forecast to tick up to 61.9%, still shy of the 63.4% seen before the pandemic, Olivia Rockeman and Molly Smith report. The survey period for the jobs report ended mid-month, so it’s doubtful the omicron variant of the coronavirus had any significant impact on the labor market in the latest data.
  • The president and First Lady Jill Biden will then travel to Louisville, Colo., to tour damage at 3:30 p.m. Mountain Standard Time and meet with families at 4:35 p.m. MST affected by last week’s wildfires.
  • Biden will depart Colorado at 6:10 p.m. MST for Nevada, where he will attend the funeral tomorrow of the late Sen. Harry Reid (D-Nev.).

Weather Update: A quick moving nor’easter has tied up air traffic across the U.S. Northeast, closing government offices and schools in Washington and blanketing New York with enough snow to make the morning commute a slog. Read more from Brian K. Sullivan.

Rushed Redistricting Lawsuits Yield Less ‘Dirt’ for Map Critics

State courts have been speeding redistricting cases to rapid conclusions, frustrating lawyers who want as much time as possible to dig up evidence of illegal gerrymandering.

In two Ohio cases, challengers to a new congressional map giving Republicans a 13-2 advantage were given just a week to gather information. They couldn’t depose key players, were unable to pierce attorney-client privilege around the work of GOP consultants, and had to present their case to the Ohio Supreme Court within a month.

“To go from filing to fully-briefed in less than a month is pretty extraordinary,” said Julie Ebenstein, senior staff attorney for voting rights at the American Civil Liberties Union. “By definition we’re going to have limited opportunity to obtain evidence.”

Those limitations were a byproduct of courts trying to balance competing priorities. States need to set filing schedules, election dates, and make sure that only valid votes are counted in state and congressional primaries, some of which can’t be done until district lines are settled. At the same time, questions about the fairness of the lines must be resolved before confirming boundaries that will influence the makeup of Congress for a decade.

Adding to the time pressure is the pandemic-caused delay at the U.S. Census Bureau that slowed the release of essential population data.

The end result puts challengers at a disadvantage, said Adam Podowitz-Thomas, senior legal strategist at Princeton University’s Electoral Innovation Lab. Read more from Alex Ebert.

MORE ELECTIONS & POLITICS:

  • All eyes will be on Pennsylvania this year as Democrats hope to pick up retiring Sen. Pat Toomey’s (R-Pa.) Senate seat so they can hold on to their slim majority in the chamber. And as term-limited Democrat Tom Wolf retires, Republicans have a shot at the governor’s mansion in a state where they firmly control the legislature. These and other races have attracted a swarm of candidates. In almost every statewide primary field, there are more than enough aspirants to suit up a football team—with one exception. The Democratic candidate for governor, Pennsylvania Attorney General Josh Shapiro, doesn’t face a single primary opponent. Read more from Jake Blumgart.
  • A federal judge appointed by Trump said he won’t step aside from a challenge to Arkansas’ congressional redistricting even though he donated to the governor and previously worked for the attorney general. Judge Lee P. Rudofsky wrote on Wednesday that his impartiality “cannot reasonably be questioned in this case” and that he can “fairly evaluate the testimony of any witness likely to be called in this case.” Arkansas State Conference NAACP and Arkansas Public Policy Panel said in a recusal motion that Gov. Asa Hutchinson (R) is a defendant, and Rudofsky donated to his re-election in 2018. Maya Earls has more.

Insurers, Employers Urge Price Caps on ‘Free’ Home Covid Tests

The Biden administration’s plan to make rapid at-home Covid-19 tests effectively free for millions of Americans could skyrocket the cost of those tests, insurers and employers are warning the government.

Federal health officials are expected to release guidance this month outlining how private health plans must reimburse their beneficiaries for the cost of at-home Covid tests. The policy is key to the administration’s effort to tamp down the spread of the virus, now occurring at historic levels.

Health insurers and employer groups are asking the Department of Health and Human Services to place limits on what private health plans must pay for at-home Covid tests or limit where Americans can buy them. Read more from Alex Ruoff.

Illinois Gov. J.B. Pritzker (D) has asked the Biden administration for Covid-19 tests to help resolve the latest dispute between Chicago Public Schools and its teachers union, a disagreement that’s led to the cancellation of classes for three straight days. “I spoke in the last couple of days with the White House to ask them for help for Chicago Public Schools,” Pritzker said in an interview yesterday. “There is a challenge all over the nation in need of testing but I think there is an urgent need in Chicago because we want to get those kids back in school.” Read more from Shruti Date Singh.

Around the Administration

Federal Reserve Vice Chair Richard Clarida sold at least $1 million of shares in a U.S. stock fund in February 2020 before buying a similar amount of the same fund a few days later on the eve of a major central bank announcement, according to an amended financial disclosure. The disclosure may raise further questions about what the soon-to-depart vice chair knew or anticipated about a Feb. 28 announcement from Fed Chair Jerome Powell, who signaled the central bank was preparing aggressive action to buffer the economy and financial markets from the coronavirus. Read more from Craig Torres.

Cecilia Martinez, the first senior director for environmental justice at the White House Council on Environmental Quality, is leaving the agency, a CEQ spokeswoman confirmed yesterday. Martinez was serving as one of the administration’s most senior architects of environmental justice policy, an issue area that the president and his top advisers have repeatedly prioritized. CEQ has also come to oversee much of Biden’s environmental justice platform. Under Martinez’ direction, the policy shop has been working with agencies to adjust cost-benefit analyses that feed federal decisions. Stephen Lee and Dean Scott have more.

The Biden administration is poised to lose another key immigration official, with the planned departure of White House adviser Esther Olavarria, a fixture in the immigration policy community, Ellen M. Gilmer reports. A White House spokesperson confirmed yesterday that Olavarria is retiring after three decades in the field, in and out of government. Politico first reported the news. Olavarria’s planned exit follows others on Biden’s immigration team. Olavarria is the council’s deputy director for immigration, working on legislative proposals and rollbacks of Trump-era policies. The exact timing of her departure hasn’t been determined, and she’ll continue working on those issues for now, a person familiar with the situation said.

The U.S. Equal Employment Opportunity Commission is once again without a general counsel after the acting official in that position was required by law to step down, a spokesperson told Bloomberg Law. Gwendolyn Young Reams, a longtime attorney at EEOC, was appointed acting general counsel March 12, 2021. Under the Federal Vacancies Reform Act, her term expired Dec. 30, 2021. EEOC spokesperson Christine Saah Nazer confirmed Reams stepped down and has resumed her position as associate general counsel for litigation management services. Read more from Shira Stein.

The National Labor Relations Board will reconsider its Trump-era framework for assessing whether workplace rules violate federal labor law. The board yesterday invited public comment on whether employers can have workplace policies that conflict with the National Labor Relations Act. Unions, employers, and other interested parties have until March 7 to weigh in on NLRB potentially overruling a 2017 decision in Boeing—which made it easier for companies to impose lawful rules—and subsequent rulings that applied the Boeing standard. Read more from Ian Kullgren and Robert Iafolla.

MORE HEADLINES:

  • The U.S. and Japan expressed concern about China’s efforts “to undermine the rules-based order” and resolved to work together to respond to its activities that threaten security, underscoring positions that have rankled Beijing. Read more from Isabel Reynolds.
  • The U.S. appointed David Satterfield to replace Jeffrey Feltman as special envoy for the Horn of Africa, a region that’s been wracked by civil war in Ethiopia, political and social upheaval in neighboring Sudan and Somalia, and a dispute over the construction of a mega-dam on the Nile River. Read more from Samuel Gebre.
  • An October meeting of U.S. allies and officials led by Anne Neuberger, the U.S. deputy national security advisor for cyber and emerging technology, reflected mounting tension within the Biden administration as different factions vie for control over the critical policy area of cybersecurity. For more than a decade, U.S. cyber policy has been hampered by confusion and internecine power struggles. Read more from William Turton.

To contact the reporters on this story: Michaela Ross in Washington at mross@bgov.com; Brandon Lee in Washington at blee@bgov.com; Ellen M. Gilmer in Washington at egilmer@bloombergindustry.com

To contact the editors responsible for this story: Giuseppe Macri at gmacri@bgov.com; Loren Duggan at lduggan@bgov.com

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