In a recent article, we described the GOP’s legal challenge to the Executive Order issued by California’s Democratic Governor Gavin Newsom — directing CA election officials to timely submit vote-by-mail (VBM) ballots to every active registered CA voter for the November general election — as “dubious”, at best.
We noted that the GOP plaintiffs lacked standing to sue in federal court because Republicans cannot show they suffered a legally cognizable injury. We also noted that the GOP’s core legal challenge — that the Elections Clause to the U.S. Constitution only permits state legislatures, not Governors, to set the time and manner of conducting federal elections — was at odds with settled Supreme Court case law and that legislative approval for the Governor’s pandemic-related emergency Executive Order can be found within the provisions of the CA Emergency Services Act.
Last week AB-860 was passed by the state legislature (even with support from Republicans) to codify Newsom’s Executive Order by specifically providing that VBM ballots be timely sent to every active registered voter in the state, even if the voter did not request one. It was signed into law this week by the Governor, rendering the GOP’s core legal argument moot.
The new law will not only mandate a dismissal of the GOP legal filing but also eliminate the need for the court to grant the Motion to Intervene [PDF] that was recently filed by several voting rights organizations opposing the challenge by a number of Republican groups, including the California Republican Party.
CA Common Cause, League of Women Voters of CA and the Community Coalition seek to be added as Party Defendants in order to counter the GOP’s effort to compel in-person voting — a GOP effort that, if successful, would dangerously and unnecessarily expose the state’s electorate to the risk of contracting a deadly virus, COVID-19. The portion of those organizations’ motion, which demolishes the GOP’s VBM “voter fraud” lies, however, warrants verbatim coverage…
UPDATE 7/10/20: After U.S. District Court Judge Morrison England, Jr. dismissed the GOP’s frivolous legal challenge following a Republican filing of a voluntary Notice of Dismissal, GOP Chairwoman Rona McDaniel falsely proclaimed that the Republican Party “scored a major victory against Gov. Gavin Newsom’s illegal executive order.” She attempted to bolster this falsehood with another lie — that, before the GOP filed its legal challenge to VBM in CA, “Democrats planned to automatically send ballots to inactive voters, including people who have moved or died.”
As we observed in a 6/5/20 update to an article that had covered the “dubious” GOP legal challenge, the Office of CA Secretary of State Alex Padilla stated that, pursuant to the Executive Order which Padilla and Gov. Newsom issued, VBM ballots would only be mailed to “active” registered voters.
“Only active registered voters will be mailed a vote-by-mail ballot. That is and has been the practice in California,” Padilla’s spokesman Sam Mahood said. Under California’s Elections Code, Mahood added, “‘voters with an inactive voter registration status do not receive elections materials.’ That includes vote-by-mail ballots.”
The only change to CA Election Law as it existed at the time the Executive Order was issued was the elimination of the requirement that voters first request a VBM ballot before one would be mailed to an
active” registered voter. Thus, at best Rona and the GOP had erected a straw man; erroneously claiming that the Executive Order required submission of VBM ballots to “inactive” voters.
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
Mr. Canning,
With your knowledge of the law, do you think it is possible to draft a new law that would give special protections for, and special guidelines for the handling of mail-in ballots?
FEDERAL law would be best, IMO.
But I’d settle for California law or a ballot prop, if that is all we could get.
Brad has said that mail-in ballots are not as secure as we might think.
Is there a way to MAKE them more secure from intentional or UNintentional disposal or careless handling, until they arrive at the polling location?
Can we make mail-in ballots more secure and trustable?
If we can make them safe enough for Brad to be happy, that will be enough for me.
🙂
Re DonL @1:
Under the Elections Clause of the U.S. Constitution, Congress has the power to define the methods for conducting all elections for federal office. It could (and should) mandate that all jurisdictions utilize hand-marked paper ballots as the exclusive means for casting a vote, except as it applies to handicapped voters. It could, but won’t, mandate that all states automatically provide all active registered voters with the option of casting a VBM ballot with respect to the Nov. 3, 2020 election.
In terms of VBM, one prominent means for rejecting them is a claim by election officials, who usually are not handwriting experts, that the signature on the ballot return envelope doesn’t match the registration signature. It’s vital that voters be provided notice and opportunity to cure the defect lest the ballot be improperly rejected.