In summary

The Republican suit challenging Newsom’s executive order on mail in ballots is a bad political argument dressed up like a lawsuit.

By Jessica A. Levinson, Special to CalMatters

Jessica A. Levinson is a professor at Loyola Law School and director of Loyola’s Public Service Institute, jessica.levinson@lls.edu, @LevinsonJessica. Co-host of the podcast “The Legal Eagle Files” on KCRW. Levinson has also written about presidential candidates. She wrote this commentary for CalMatters.

No one should have to choose between their health and their right to vote. Full stop. No proverbial “ifs” “ands” or “buts.”

Gov. Gavin Newsom has acknowledged this. On May 8, he issued an executive order directing that vote-by-mail ballots be sent to every registered voter in the state. 

Every registered voter in California already has the right to vote by mail, but prior to Newsom’s order, they had to request that type of ballot or already be a permanent vote by mail voter. 

The Republican National Committee, National Republican Congressional Committee and California Republican Party filed suit challenging Newsom’s executive order. 

The suit is a bad political argument dressed up like a lawsuit. 

The plaintiffs claim that Newsom’s actions “created a recipe for disaster.” It would be more accurate to argue that Newsom created a recipe for increased voter turnout. 

Conventional wisdom indicates that the higher the voter turnout, the better it is for Republicans and the worse for Democrats. 

Recently, when discussing Democratic proposals to make it easier to vote, such as by increasing vote by mail, President Donald Trump stated, “They had things – levels of voting that, if you ever agreed to it, you’d never have a Republican elected in this country again.” 

We can go up and back about whether Trump was clumsily trying to say that vote by mail would increase voter fraud which would help Democrats, but let’s get real, America. It is hard to escape the conclusion that the president of the United States and many members of his party are really hoping many of you do not show up to vote on Election Day. 

There is some statistical evidence that undercuts the Republican view that boosting vote by mail options hurts their chances of winning at the ballot box. And indeed, just recently, Republican Mike Garcia bested Democrat Christy Smith in a largely vote-by-mail congressional election in California. 

Notwithstanding the fact that voting-by-mail could actually benefit Republicans, many members of the party are vehemently against it. Trump, despite voting-by-mail himself, has raged against the process. Trump has alleged voting-by-mail is a system that is ripe with fraud and abuse. Trump, without any evidence, has said voting by mail is a scam that will lead to a rigged election. 

Trump’s baseless accusations accomplish two goals. First, Trump can drive down voter turnout, which Trump clearly believes will benefit Republicans. Second, Trump can lay the groundwork for why he loses, if in fact he does. 

Let’s say it one more time. Clearly and slowly. Widespread voter fraud is a myth. This is true for mail-in ballots as well as in-person voting. Are the rare, rare circumstances of voter fraud more likely to occur when voting by mail than voting in person? Yes. Is voter fraud a system problem that threatens the integrity of our election? No. 

We should worry about politicians, including the president of the United States, peddling lies about voter fraud that lead to voter suppression. People should not worry about the integrity of the vote-by-mail process. 

Voting-by-mail is likely the safest option available in November for the general election. So let’s talk about why anyone would want to undermine that process and the specifics of the Republican lawsuit against Newsom. 

The Republican plaintiffs essentially make two broad arguments, the first is blatantly political, and the second is political, but wrapped in the veneer of legal assertions. 

First, the Republican plaintiffs claim that ineligible voters will received ballots and this “invites fraud and undermines the public’s confidence in the integrity of elections.” The truth is that by continuously claiming, without credible evidence, that the vote-by-mail system is disposed for fraud and abuse, it is plaintiffs who are undermining the public’s confidence in our elections which will suppress voter turnout. And it is hard to escape the conclusion that that is precisely the point.  

Second, the Republican plaintiffs claim that Newsom lacks the power to, by executive order, direct that mail in ballots be sent to all registered voters. The executive order, whose aim is to allow all voters to exercise their right to vote, is described in the complaint as an unauthorized “brazen power grab.” The California Constitution provides the governor with broad emergency powers to issue executive orders to protect our health, safety and welfare. At first blush, protecting our right to vote during a global pandemic certainly looks like a proper use of that authority. 

And so we end where we began. Those seeking to undermine the integrity of elections are not those trying to make it easier for you to safely vote. Instead, they are the ones trying to undermine your confidence in the safest way to exercise that right. 

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Jessica A. Levinson is a professor at Loyola Law School and director of Loyola’s Public Service Institute, jessica.levinson@lls.edu, @LevinsonJessica. Co-host of the podcast “The Legal Eagle Files” on KCRW. Levinson has also written about presidential candidates. She wrote this commentary for CalMatters.

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