In summary

Gov. Gavin Newsom wants every registered voter to receive a ballot in the mail for the November 2020 election, but a judge just put one of his executive orders on hold.

Updated: June 17, 2020.

Gov. Gavin Newsom’s plan to make the November 2020 election a socially-distanced affair is once again the law of the land — for now.

A state appellate court ruled this morning that the governor’s executive order specifying how county registrars should conduct the coming presidential election should remain in effect.

The ruling overrides a Sutter County judge’s decree from last week, which put a temporary hold on Newsom’s plan.

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. The governor also wants to ensure that each county keeps enough polling places open to accommodate voters who need assistance.

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

But that temporary freeze on the gubernatorial order has itself been blocked. Justice Vance Raye of the state’s Third District Court of Appeal did not explain his decision in his short ruling today. 

The judicial back-and-forth is focused on 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.

“This entirely ordinary temporary stay does not reverse the Superior Court’s finding that the Governor’s Executive Order was an abuse of power,” the two legislators wrote in a statement. “The Court’s Order is not overturned, but merely stayed pending resolution of a procedural issue.”

They said the governor should “stop playing procedural games” and either rescind his order or “show up to argue his case on June 26, as the Superior Court ordered.”

But 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 are considering two bills that largely mirror the governor’s election directives. 

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.

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“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.”

The current court battle 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.

One pending bill, by Palo Alto Democratic Assemblyman Marc Berman, was introduced prior to Newsom’s order, which largely mirrors the bill. It requires 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 no matter the outcome in the courts, 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.”

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Ben Christopher

Ben covers California politics and elections. Prior to that, he was a contributing writer for CalMatters reporting on the state's economy and budget. Based out of the San Francisco Bay Area, he has written...