Rightwing organization and GOP candidate Darrell Issa charge mailing ballots to every registered voter violates the U.S. Constitution...
UPDATE: Case likely to be dismissed as moot...
By Ernest A. Canning on 5/26/2020, 9:35am PT  

In a desperate attempt to prevent a high turnout of California voters for the critical 2020 General Election, attorneys from the extreme right-wing organization, Judicial Watch, filed a federal complaint [PDF] late last week on behalf of former Republican Congressman turned candidate again Darrell Issa with several named Republican voters in the U.S. District Court (Eastern District CA)

The complaint alleges that CA Governor Gavin Newsom and Secretary of State Alex Padilla, both Democrats, unlawfully usurped the power of the CA state legislature when, on May 8, they issued an emergency Executive Order in response to the COVID-19 crisis. The order directed the election officials of every CA county to "transmit Vote-by-Mail [VBM] ballots for the November 3, 2020 General Election to all [registered] voters" no later than "the last day on which [VBM] ballots may be transmitted."

The complaint alleges that the Executive Order violates the Elections Clause of the U.S. Constitution, Art. I, §4. That clause provides, in pertinent part: "The Times, Places and Manner of holding Elections for Senators and Representatives, shall be prescribed in each State by the Legislature thereof."

The CA legislature, via the state's Voter's Choice Act, set forth explicit criteria that each county must meet in order to become an all VBM county. The Republican plaintiffs argue the Executive Order permits counties that have not met that criteria to act as VBM counties; that permitting all voters to cast VBM ballots "dilutes" the votes of the Republican voter plaintiffs who live in counties which have not met the statutory criteria. They seek to invalidate the Executive Order and compel those CA voters who have not timely requested absentee ballots under CA law, as it existed prior to May 8, to either vote in-person or not at all.

The Republicans' legal filing drew a sharp retort from Padilla: "Exploiting the COVID-19 pandemic to justify voter suppression is despicable, even for Judicial Watch's pathetically low standards."

From a legal standpoint, the Republicans' legal arguments are frivolous...

The U.S. Constitution's Elections Clause expressly refers to the right of a state "Legislature" to establish the "Times, Places and Manner of holding" federal elections. However, as explained by Law Professors Michael T. Morley (FL State) and Franita Tolson (USC)...

The Supreme Court has construed the term "Legislature" extremely broadly to include any entity or procedure that a state's constitution permits to exercise lawmaking power. Thus, laws regulating congressional elections may be enacted not only by a state's actual legislature, but also directly by a state's voters through the initiative process or public referendum, in states that allow such procedures. 

The Court also has held that a legislature may delegate its authority under the Elections Clause to other entities or officials

In his Executive Order, Newsom relied upon the provisions of Section 8571 of the California Emergency Services Act, which expressly authorizes the Governor to "suspend any regulatory statute, or statute prescribing the procedure for the conduct of state business." The conduct of an election is, obviously, "the conduct of state business."

The Republican plaintiffs' core argument is grounded upon a straw man. The Executive Order does not create new Vote-by-Mail only counties. To the contrary, as CNN's Kelly Mena correctly observed, "in-person voting remains an option". Newsom's executive order does not change the manner in which absentee ballots are to be cast, opened, verified or tallied. It simply eliminates the need for voters to request an absentee ballot. Every voter will receive one. Lawfully registered voters can then choose to cast a mail-in ballot, vote in person, or decline to cast a ballot at all.

Newsom's emergency order is consistent with the provisions of CA Elections Code, §3003: "The vote by mail ballot shall be available to any registered voter."

Republicans often cite the risk of voter fraud as a reason to oppose VBM, and they allege Newsom's edict will result in fraud across the state. The reality is that cases of VBM voter fraud are "extremely rare", according to a recently released UCLA Voting Rights Project Study [PDF]. The most prominent case, involving a fraudulent VBM ballot collection scheme, was illegally carried out by a Republican operative in North Carolina during the 2018 elections. Although CA Republicans have raised concerns about fraudulent "ballot harvesting," CA election officials "say they haven't seen any evidence tampering or fraud tied to ballot harvesting" in the Golden State, according to the Orange County Register. That "extremely rare" risk of VBM fraud is outweighed by the likelihood of massive voter disenfranchisement that would be occasioned by forcing voters to choose between exercising their right to vote and the very real risk of contracting a deadly disease.

Irrespective the dubious nature of overblown GOP voter fraud claims, those claims can't form the basis for challenging Newsom's executive order because the order does not alter existing CA law on the collection of mail-in ballots.

The only change occasioned by the Executive Order was the elimination of the requirement that voters first request an absentee ballot --- a change that amply fell within Gov. Newsom's emergency powers given that, even during a relatively depressed turnout in Wisconsin's April 7 primary election --- when that state's Supreme Court forced thousands of voters to use the polls rather than vote by absentee ballot --- at least 67 voters contracted COVID-19. Moreover, a new study [PDF] from researchers at University of Wisconsin and Ball State University found that, in the weeks following WI's primary, "counties with higher levels of in-person voting per polling location led to increases in the weekly positive rate of COVID-19 tests" and that "counties with higher absentee voting participation had lower rates of detecting COVID-19 two to three weeks after the election."

One of the core problems the Republican plaintiffs face is that they lack standing to sue in federal court. That issue arises because federal courts can only exercise their jurisdiction if the plaintiffs have suffered "a distinct and palpable injury as a result of the putatively illegal conduct of the defendant."

Because Newsom's executive order makes VBM ballots available to all voters, Republicans cannot claim that the order discriminates against them. In a feeble attempt to erect standing, Republicans, who account for only 23.1% of the Golden State's registered voters, have presented the argument that the power of their votes will be "diluted" unless, as had been the case in WI, the pandemic is allowed to suppress turnout by forcing voters to choose between the risk of contracting a deadly disease and exercising their right to vote. In other words, the GOP, which has been reduced to third party status if "No Party Preference" voters are treated as a separate Party, absurdly contend that a truly democratic election entailing a high-turnout of registered voters is unfair because a super majority of registered CA voters reject their politics.

The absurdity of the Republican plaintiffs' argument was actually underscored by the two federal cases (Bennett v. Yoshina (9th Circuit 1998) and Griffin v. Burns (1st Circuit 1977)), that the Judicial Watch attorneys cited in their complaint. Both cases reiterate the principle that, in the absence of racial discrimination, federal courts will not intervene in a state's election process "for garden variety election irregularities." Federal courts intervene only where "the election itself reaches the point of a fundamental unfairness."

Griffin presented a classic factual illustration of the "fundamental unfairness" concept.

Although, at the time, Rhode Island's election laws generally provided for the use of absentee ballots, it was silent on whether absentee ballots could be cast in primary elections. Prior to a special Providence City Council primary election, RI's election officials interpreted the law to allow absentee ballots in primary elections. Prior to the election, neither of the two candidates, Thomas McCormick and Lloyd Griffin, objected to proceeding under that interpretation.

Based on the combined in-person and absentee ballot tallies, Griffin was certified as the winner. McCormick then contested the election, contending, for the first time, that the statute had not authorized absentee balloting. The RI Supreme Court agreed and retroactively ruled that the absentee ballots could not be included in the final count --- this, despite absentee voter declarations later presented in the federal case that, had they known about the RI court's interpretation in advance, they would have voted in-person. McCormick was declared the winner based on the in-person totals.

But the federal appellate court ruled that the RI Supreme Court ruling deprived the absentee voters of their right to due process when it retroactively eliminated their votes.

Thus, the very cases the Judicial Watch attorneys cite in their new complaint reveal that federal courts will intervene only when voters are unreasonably denied the opportunity to cast a vote or to have their lawfully cast votes counted. Federal courts are not supposed to intervene to suppress the vote.

UPDATE 6/5/20: Countering a GOP claim that VBM ballots could be sent to "phantom" inactive voters, CA Secretary of State Alex Padilla said that, under the emergency executive order, VBM ballots will only be sent to "active" registered voters. However, CA Assemblyman Marc Berman (D-Palo Alto) introduced AB-860, which would mandate that VBM ballots be mailed to all registered voters, both active and inactive.

Padilla's interpretation of the executive order is consistent with existing CA law, which precludes the mailing of election materials to "inactive" voters.

Under the provisions of CA Elections Code, §2224, a person becomes "inactive" if they "have not voted in any election over the [preceding] four years, and the voters residence address, name or party preference has not been updated during that time" if they fail to verify their address within 15 days of the submission of a written request for address confirmation from County election officials. If that confirmation is not timely received, the voter "may be required to provide proof of [their] residence address in order to vote at future elections."

While it would be useful for CA to codify the executive order, as interpreted by Padilla, Berman's effort to expand the automatic mailing of VBM ballots to "inactive" voters would simply open up the system to valid criticisms.

UPDATE 6/24/20: As we reported today, The passage of legislation that codified the governor's executive order has gutted the GOP's core argument. The case ill likely be dismissed as moot.

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Ernest A. Canning is a retired attorney, author, and Vietnam Veteran (4th Infantry, Central Highlands 1968). He previously served as a Senior Advisor to Veterans For Bernie. Canning has been a member of the California state bar since 1977. In addition to a juris doctor, he has received both undergraduate and graduate degrees in political science. Follow him on twitter: @cann4ing

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