Judge To Newsom On Vote-By-Mail Strategy: Restrain Yourself

By Ben Christopher, CalMatters

If Gov. Gavin Newsom wants to make the November 2020 election a socially-distanced affair, he may need the Legislature’s help after all.

This morning, a California district court judge in Sutter County put a hold on an executive order inked by the governor last week that specified how county registrars should conduct the coming presidential election. The governor’s goal: make sure that all registered voters receive a ballot in the mail to keep as many people as possible away from the polls — and each other.

In response to a challenge brought by Republican Assemblymen James Gallagher of Yuba City and Kevin Kiley of Bieber of Rocklin, Judge Perry Parker agreed that Newsom’s directive may be an “impermissible use of legislative powers in violation of the California Constitution.” 

The temporary hold on the gubernatorial order will last until the case can go to trial.

“Nobody should have to choose between their health and their right to vote,” wrote Jesse Melgar, Newsom’s press secretary.  “The action taken by the court today does not impede or impact California’s ability to move forward with the Governor’s Vote by Mail executive order. The state will continue advancing our efforts to ensure that Californians can exercise their right to vote in a safe and accessible manner during the General Election this November, including through registered voters voting by mail.”

Today’s court ruling suspends an order by Newsom specifying how many in-person voting options county election officials should maintain this coming November. It does not address Newsom’s earlier order requiring that all registered voters receive a ballot at home.

While the legal process plays out, it may now be up to the state Legislature to offer a quicker and more legally secure revision. Lawmakers in Sacramento are considering two bills that largely mirror the governor’s election directives. 

Though the election isn’t for another five months, county election administrators are already scrambling to secure polling places, round up volunteers and acquire whatever protective equipment, cleaning products and technological work-arounds might be required to hold an election amid a pandemic.

“They’re on a super-short timeline,” said Kim Alexander, president of the California Voter Foundation. “That’s one of the reasons why the Legislature is moving quickly to get this adopted and enacted.”

Today’s court ruling cranks up that pressure.

Recent primary contests in Wisconsin and Georgia saw voters crowding into polling stations and waiting in long lines, to the dismay of public health experts and voting rights advocates alike. According to the Wisconsin Department of Health Services, 71 people who voted in person or volunteered to work the polls during the state’s April 7 election subsequently contracted COVID-19.

With that cautionary tale in mind, Newsom has issued two executive orders to reshape the coming election. In early May, he decreed that all registered voters should receive a ballot in the mail. In another order last week, he mandated that counties still maintain in-person voting options for those who need assistance. That order gave counties the opportunity to operate a small number of vote centers as long as they allow for more early voting.

Immediately after the first order was issued, two lawsuits were filed — one by San Diego County congressional candidate Darrell Issa and the other by the National Republican Committee and the California Republican Party. Both suits argued that the governor does not have the constitutional authority to change election procedure, though they also took issue with the security of voting-by-mail. 

Hanging over this legal battle is an increasingly partisan debate over absentee voting. In late May, President Donald Trump falsely claimed that Newsom’s executive order would authorize non-citizens to vote. This prompted Twitter to take the unprecedented move of slapping the president’s tweet with a mildly chiding disclaimer: “Get the facts about mail-in ballots.”

Trump also characterized a recent California special election as “rigged” after Newsom ordered county registrars to offer in-person voting options — though Mike Garcia, the Republican candidate backed by the president, ultimately won by a decisive margin. 

The lawsuit brought by Gallagher and Kiley challenges the governor’s second order. The two Republicans don’t take up the question of whether a universal vote-by-mail law is good policy. Instead, they argue that the Legislature is the branch of government entitled to make and change election law and that the governor’s executive orders are a “clear violation of the separation of powers” and a “usurpation of legislative power.”

Despite the legal pushback, part of the strategy behind the governor’s executive order, said Alexander, was to serve as a placeholder while the Legislature deliberates in order “to give the counties direction so they can start making plans even if the executive order is challenged.”

“The county elections officials needed a signal earlier to start the process,” said Palo Alto Democratic Assemblyman Marc Berman, author of one of the two bills that would codify the governor’s executive orders. “In this COVID pandemic, where we were all reacting very quickly to a very different landscape, I think the governor’s executive order had a role to play. But our legislation has a critically important role to play as well. It’s kind of a belt and suspenders approach.”

But Newsom has struck a much more confident tone. During a press conference on May 22, he insisted that his order was “on firm legal ground.” And though it would be nice to have the Legislature pass its own version of the new rules, he argued that it wasn’t strictly necessary. 

“We appreciate their work and, to the extent they want to codify it, I think that could help as well. Why not?” he said.

Today, Judge Parker seemed to disagree that legislative authorization was merely optional.

One pending bill, by Palo Alto Democratic Assemblyman Marc Berman, largely reflects the governor’s first executive order, requiring counties to send all active registered voters a ballot in the mail. The bill has been passed by both the Assembly and the Senate. It is currently awaiting approval of amendments in the Assembly’s election committee on Tuesday, and would then go back to the full chamber for a final vote. 

Another bill by Santa Ana Democratic state Sen. Tom Umberg is the legislative version of Newsom’s second order, giving counties the option to consolidate in-person voting locations. Umberg’s legislation has passed the Senate and is awaiting its first scheduled appearance before the Assembly.

Umberg said that despite today’s court order, the governor is going to get his way.

County registrars “should continue preparations for an election along the lines of that which was outlined in the governor’s executive order and in the legislation,” he said. “One way or another, we’re going to have a different kind of election in the fall.”