A California judge ruled that Gov. Gavin Newsom’s executive order requiring mail-in ballots to be sent to every registered voter in the state was unconstitutional.
Sutter County Superior Court Judge Sarah Heckman issued her ruling on Monday, which also contained a permanent injunction, instructing the governor not to issue further orders that would be similarly improper. Tuesday’s election will be unaffected by the ruling because a vote-by-mail order was ultimately passed by the state’s Legislature.
The ruling will be tentative for the next 10 days. That window will allow either party to present objections should they have any. After those 10 days, the ruling will become final, the ruling said.
In May, Newsom issued an executive order in May requiring county officials to send ballots to all of their registered voters. In June, the governor issued a second order, which reiterated that same requirement and further changed several state election laws.
California State Assemblymen Kevin Kiley and James Gallagher filed a lawsuit after the June order was issued, arguing that it represented an extreme overreach.
“The [California Emergency Services Act] allows the Governor, during a state of emergency, to issue orders and regulations and to suspend certain statutes, but the plain and unambiguous language of CESA does not permit the Governor to amend statutes or make new statutes,” Heckman wrote in her decision. “The Governor does not have the power or authority to assume the Legislature’s role of creating legislative policy and enactments. Because Executive Order N-67-20 amended sections of the Elections Code it exceeds the Governor’s authority under CESA and renders Executive Order N-67-2O invalid.”
Both Kiley and Gallagher were pleased with the outcome.
In a joint statement, the two called it “a victory for separation of powers.”
“The ruling was everything we asked for,” Gallagher told the Washington Examiner. “Essentially what it does is it restores the separation of powers in California. Just because we’re in an emergency doesn’t mean that the governor can exercise legislative powers. We didn’t change and become an autocracy. We still are a representative democracy.”
Newsom has issued similar orders in the past that, under the judge’s ruling, would be considered unconstitutional. When asked why the assemblymen chose to challenge this ruling specifically, Gallagher said it was because they felt this one constituted the “most egregious overreach.”
“This had nothing to do with a policy disagreement,” he added. “And, in fact, Kevin Kiley and myself actually voted for AB-860, which provided for a mail ballot election in California. Our consistent complaint here has been about process. It is the legislature that gets to make and change law, not the governor.”
AB-860 was passed shortly after the governor issued his executive order.
While the governor’s office was not pleased with all aspects of the ruling, it did feel that the decision vindicated Newsom in one respect.
“The tentative ruling makes clear that the Governor’s statutory emergency authority is broad, and constitutional, and that the Governor has the authority, necessary in emergencies, to suspend statutes and issue orders to protect Californians,” Jesse Melgar, the governor’s press secretary, said in a statement to the Washington Examiner. “Additionally, this ruling has absolutely no effect whatsoever on the current election. We strongly disagree with specific limitations the ruling places on the exercise of the Governor’s emergency authority and are evaluating next steps.”
Melgar did not specify whether Newsom would appeal the decision.
