By Ken Stone
November’s presidential election could be thrown into chaos if Gov. Gavin Newsom’s executive order for mail-only balloting isn’t blocked.
So says attorney T. Russell Nobile on behalf of former Rep. Darrell Issa and others suing Newsom and Secretary of State Alex Padilla. The Judicial Watch lawyer also says Newsom ignores potential “irreparable harm” to the state.
In a 23-page brief filed Thursday in Sacramento federal court, the congressional candidate’s lawyer calls for a preliminary injunction to reverse Newsom’s order to mail every registered voter an absentee ballot amid the ongoing pandemic.
“Granting preliminary relief now resolves the legal question before it deteriorates into an intractable political question later,” Nobile writes.
Unresolved issues about the legality of Executive Order N-64-20 may lead to more serious disputes later, possibly with a nationwide impact, he said.
“The 117th Congress will meet on January 6, 2021, to certify each state’s electoral votes. … During that process, Congress will have the right to voice its objection to the counting of any state’s electoral votes,” Nobile notes.
But if the electoral margin between President Trump and Democrat Joe Biden is fewer than 55 electoral votes, he said, the dispute over EO N-64-20’s legality may take on greater import.
“It is in the public interest to have the courts resolve this legal question to ensure that California’s electors are counted,” he said.
Meanwhile, more groups are becoming co-defendants in the case — California Common Cause, the League of Women Voters and Los Angeles-based Community Coalition. As Judge Morrison England Jr. approves them as “intervenors,” they’ll join the previously OK’d Democratic Congressional Campaign Committee and the California Democratic Party.
Nobile cites more than 50 court cases, and state and constitutional provisions, in making a case that Newsom ignores potential “irreparable harm” to California through his ballot actions.
He concedes that during a state of emergency, Newsom “may suspend any regulatory statute, or statute prescribing the procedure for conduct of state business, or the orders, rules or regulations of any state agency.”
But Newsom isn’t seeking to suspend anything in his order, the lawyer said.
“Instead, he is attempting to impose an entirely new election system on the state and transform permissive provisions under California law into mandatory provisions,” he writes. “Such transformation is not ‘suspending’ even under the most deferential interpretation of his emergency authority.”
He argues: “Whatever ‘suspend’ means in §8571, it is not the power to enact legislation.”
Nobile said it would be “beyond peculiar” for the state to claim that election laws are regulations prescribing the “procedures for conduct of state business.”
He claims that California has for 20 years failed to comply with list-maintenance provisions of the National Voter Registration Act.
So “this harm will be significant because the state’s voter registration lists are not ready for a broad-based, all-mailed ballot election and will not be ready by November 3, 2020,” he writes.
“California will flood the state with ballots mailed to countless voters at locations they no longer reside, including some that moved almost 20 years ago. Because of its longstanding list maintenance failures, there is reason to believe these problems apply to both active and inactive registered voters.”
And since it takes at least two federal election cycles before most voters can be removed under the NVRA, “no quick fix” exists to the problems identified with California’s voter lists.
“Just the damage this will do to the confidence in California’s elections is significant and irreparable,” he added. “Without preliminary relief, it will be impossible to reverse or enjoin EO N-64-20 once ballots are mailed out.”
Without a court injunction, Nobile said, there’s a “high likelihood that federal courts will be called upon to evaluate the legality of EO N-64-20 post-election. Given the nature of federal offices, it will be virtually impossible for a court to provide aggrieved persons post-election relief.”
On Wednesday, when California Common Cause filed a motion to become an intervenor, the group’s executive director said “these lawsuits are filled with baseless claims about vote-by-mail being rife with fraud and California’s elections being poorly run. They are light on facts and heavy on partisan rhetoric.”
Jonathan Mehta Stein, the executive director, added: “We seek to defend the governor’s Executive Order to ensure access to the ballot for all California voters, but we also hope to protect California’s approach to elections, which has always put voter access first without sacrificing security.”
Hector Sanchez, deputy director of Community Coalition, also said in a statement: “Sending a vote-by-mail ballot to every voter will show Black and Brown people that California is committed to all communities participating in our democracy.”
The Issa filing doesn’t mention that the state Senate on Thursday voted 31-7 for Assembly Bill 860, which would ensure all registered voters get a mail ballot before the November election. It next goes to the Democratic-dominated Assembly.
But if Newsom’s order violates state and federal law, the state Legislature can fix that with its own all-absentee-ballot order.
As Nobile’s motion notes: “The California Constitution makes clear that its legislative power ‘is vested in the California Legislature which consists of the Senate and Assembly.'”
Judge England will hear both sides on the injunction issue July 16 by video conference.
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