WASHINGTON, DC – Judicial Watch announced today that it has opposed a motion by the Democratic Congressional Campaign Committee (DCCC) and California Democratic Party’s to help defend Governor Gavin Newsom’s executive order mandating that millions of unrequested and unneeded mail-in ballots be sent to all California registered voters for the November 3, 2020 election.
Judicial Watch sued to stop the Newsom Mandate, on behalf of former congressman Darrell Issa (a candidate for California’s 50thCongressional District in the November election) and four voters from across the political spectrum. (Darrell Issa, et al, v. Gavin Newsom et al. (No. 2:20-cv-01044-MCE-CKD)).
Judicial Watch argues that Newsom’s executive order is an “unlawful attempt to supersede and replace California election law, including the Voter’s Choice Act (VCA), by imposing an entirely new” electoral system. It argues that the executive order violates the Elections Clause, the Electors Clause, and the Due Process Clause of the Constitution and was done beyond the governor’s authority under state law.
In their motion, the Democratic Party groups sought to join the lawsuit as “intervenors,” who would assist Gov. Newsom in defending his executive orders. Judicial Watch points out in response that they made a number of assertions about a prospective shortage of mail-in ballots “that are simply not factual.”
The Democrats contend that, if Judicial Watch prevails in its lawsuit against Newsom’s order, voters would be forced to choose between their right to vote and their health, that resources would need to be diverted to “address the lack of mail ballots,” and that the result “will be far less voter turnout among Democratic Party supporters.”
Judicial Watch responds that “these fine-sounding words and phrases . . . are, in fact, empty, as may be simply demonstrated. Prior to COVID-19 and Governor Newsom’s order, California was a ‘no-excuse absentee ballot’ state. Even prior to the governor’s order, California voters could request an absentee, mail-in ballot, without having to provide any particular reason for doing so. Following any such request a ballot had to be mailed within five days. These procedures applied to every voter” in California.
Judicial Watch continues: “No voters will have to ‘to choose between risking their health to vote in person and participating in the Election’ because voters concerned about COVID-19 could request an absentee ballot – as they always could. For the same reason, no voters will ‘lose the ability to cast ballots,’ nor will Movants have to ‘divert resources’ because of a ‘lack of mail ballots.’ Absentee ballots will remain available to every California voter who wants one with or without the governor’s order.”
“Neither Democrat nor Republican voters benefit from Governor Newsom’s unconstitutional scheme to flood the mails with millions of unrequested ballots – a scheme which may cause the votes of countless voters of both parties to be thrown out or not counted,” said Judicial Watch President Tom Fitton.
California’s Voter’s Choice Act (VCA), passed in 2016, allows counties to conduct all-mail ballot elections if they meet certain specified conditions. In the March primaries, only 15 California counties chose to conduct their elections as all-mail ballot elections under the VCA. The other 43 counties did not.
On March 4, Newsom declared a state of emergency in California, citing the threat posed by the COVID-19 pandemic. On May 8, relying on his emergency powers, Newsom issued Executive Order N-64-20. It provided that “[n]otwithstanding any limitation on the distribution of vote-by-mail ballots” in the VCA or in any other California law, “county elections officials shall transmit vote-by-mail ballots for the
November 3, 2020 General Election to all voters who are . . . registered to vote in that election.”
Judicial Watch points out that Newsom’s executive order violates the U.S. Constitution and California state law. According to the U.S. Constitution, only state legislatures may determine the “Times, Places and Manner of holding Elections for Senators and Representatives,” and only state legislatures may establish the manner in which electors to the Electoral College are appointed.
The lawsuit points out that “[n]either defendant in this case is a ‘Legislature,’” as required under the Constitution, and “[t]he California Legislature never delegated to [Newsom] its authority under the Elections Clause or Electors Clause to regulate the manner of conducting elections for senators, representatives, or presidential electors.”
Judicial Watch also contends that Newsom’s order violates the VCA, which grants counties the option to qualify for and opt into a system of mail-in voting. Judicial Watch argues the VCA reflects the legislature’s deliberate choice to delegate to each county the decision about whether to qualify and opt into the all-mail ballot system.
In 2018, California settled a federal lawsuit with Judicial Watch and began the process of removing up to 1.6 million inactive names from Los Angeles County’s voter rolls. Judicial Watch late last year sent 11 additional notices to California counties warning them of voting list maintenance issues. Judicial Watch recently sued North Carolina and Pennsylvania to force them to clean up their voter rolls.
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