Governor’s mail-in ballot order unconstitutional, judge rules

A Sutter County judge tentatively ruled Gov. Gavin Newsom's order that every California voter receive a mail-in ballot was unconstitutional on Monday because he changed a law or made a new law.

While the order won't affect today's election, unless overturned on appeal it might limit the governor's options in the future.

Newsom's order also included provisions about polling locations, drop-off sites and ballot tracking.

Judge Sarah H. Heckman found Newsom exceeded his authority when he issued the order on June 3. She specifically rejected the administration's argument that the case was moot because the governor withdrew the order. Gallagher v. Newsom, CVCS20-0912 (Sutter Super. Ct., filed June 12, 2020).

"The legal controversy for which plaintiffs have requested declaratory relief is not limited to the validity of Executive Order N-67-20 (Def. Ex. 5), which concerns only the 2020 General Election," Heckman wrote. "The controversy at issue in this case is broader, specifically whether the governor has the authority under the California Emergency Services Act ... to exercise legislative powers by unilaterally amending, altering, or changing existing statutory law or making new statutory law. ... Not only is this an active and ongoing controversy between the parties, but it is a critically important one for the judicial branch to resolve"

Two Republican assemblymen who are also attorneys, Kevin P. Kiley, R-Rocklin, and James Gallagher, R-Yuba City, filed and argued the case. They said the order illegally superseded the Legislature's authority, noting lawmakers were debating two bills relating to these topics at the time of Newsom's order.

"This is a victory for separation of powers," they said in a joint news release. "The governor has continued to create and change state law without public input and without the deliberative process provided by the Legislature."

Heckman issued an injunction barring Newsom from issuing any future orders "which amend statutory law and create legislative policy."

It was a rare win for opponents of Newsom's orders, which have been upheld in several venues.

-- Malcolm Maclachlan