California court rules Newsom’s COVID mail-in ballot order unconstitutional, curbs his executive powers

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A California judge ruled Monday that Gov. Gavin Newsom (D) overstepped his authority when he issued an executive order amending state election law requiring mail-in ballots be sent to every registered voter amid the COVID-19 pandemic.

In her ruling, Sutter County Superior Court Judge Sarah Heckman said that Newsom’s order was “an unconstitutional exercise of legislative power,” though it’s not expected to alter the outcome of the 2020 election.

Rather, Heckman’s tentative order aims to put a check on the governor’s use of executive orders to change or implement new laws, Courthouse News reported.

In March, Newsom declared a state of emergency due to the spreading COVID-19 pandemic. Three months later, in June, Newsom issued a blanket executive order to send mail-in ballots to all registered California voters.

In addition, Newsom’s order required election officials to utilized a specific barcode in order to track ballots through the mail. He also changed the hours of operation in polling places in specific counties leading up to Tuesday’s election.

In sum, the governor issued a trio of executive orders during the state of emergency he said were necessary to ensure voters could cast ballots safely. But overall, Newsom issued more than 50 orders that changed a number of state laws over the past several months under the auspices of the California Emergency Services Act (CESA).

That law gives governors the authority to issue orders and rules while suspending certain laws during a declared state of emergency.

But California GOP Assemblymen James Gallagher and Kevin Kiley filed suit against Newsom, claiming his mail-in vote order was a gross abuse of power and an overreach. The two also introduced legislation to have Newsom’s emergency order overturned.

In May, former GOP Rep. Darrell Issa, who is running for his old Southern California seat, also filed suit against Newsom, along with Judicial Watch, in which they, too, claimed the order was “unconstitutional.”

“The all-mail system ordered by Governor Newsom…is an unlawful attempt to supersede and replace California election law,” the 14-page complaint read.

Heckman did not overturn Newsom’s state of emergency but ruled the law “does not authorize or empower the governor of the state of California to amend statutory law or make new statutory law, which is exclusively a legislative function not delegated to the governor under the CESA.”

She also found “the Constitution gives the legislative branch the exclusive authority to make law and the executive branch the power to see that the law is faithfully executed.”

The judge went on to note that both sides in the case are “diametrically opposed” to each other regarding how a governor can use his or her power.

In court papers, lawyers for Newsom said that the order had been rescinded, but Heckman noted in her ruling that there hasn’t been any official withdrawal of the order yet.

Over the summer, California’s Democratic legislative supermajority passed a separate bill allowing vote-by-mail ballots to be sent to all registered voters. However, Heckman noted that the new law did not make the matter moot because local election officials were still required to use the special barcode system established under Newsom’s order.

“To the contrary, the orders are all very limited in scope to suspend specific statutes, as the governor is expressly permitted to do under the CESA, but do not amend statutory law or create new statutes,” wrote Heckman. “The distinction is key.”

Gallagher told Courthouse News the suit wasn’t partisan.

“The filing and ruling was to ensure that our democracy works the way it’s supposed to work,” he said. “We don’t become an autocracy because we’re in an emergency.”

“This is a victory for separation of powers,” the lawmakers added in a joint statement. Newsom “has continued to create and change state law without public input and without the deliberative process provided by the Legislature.”


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