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Judge Drops the Hammer on Gov. Newsom, Rules He Overstepped Authority on Mail-in Ballots

A California judge ruled late Friday that Gov. Gavin Newsom, a Democrat, overstepped his legal authority when he mandated that every legal California voter receive a mail-in ballot for the general election.

The ruling does not impact the 2020 election.

What's the background?

Newsom issued an executive order in June declaring that "all Californians who are registered (and otherwise eligible) to vote in the November 3, 2020 General Election shall receive vote-by-mail ballots."

The executive action was taken as part of the California Emergency Services Act, or CESA, which gives Newsom special powers during a public emergency — in this case the novel coronavirus pandemic. Newsom signed an executive order that mandated all registered voters receive vote-by-mail ballots and allowed counties to reduce precincts on Election Day if they provide in-person voting centers for at least three days prior as a way to mitigate the spread of COVID-19.

What did the judge say?

According to Sutter County Judge Sarah Heckman, the executive order overstepped Newsom's legal authority because he does not have the power to amend existing law.

"Executive Order N-67-20 issued by the Governor on June 3, 2020 is void as an unconstitutional exercise of legislative power and shall be of no further force or effect," Heckman's ruling said. "The California Emergency Services Act (CA Government Code §8550 et seq.) does not authorize or empower the Governor of the State of California to amend statutory law or make new statutory law, which is exclusively a legislative function not delegated to the Governor under the CESA."

The ruling came after two California Assembly members — James Gallagher and Kevin Kiley, both Republicans — sued, arguing Newsom's order went beyond the governor's legal authority because he amended existing state law, which falls under the authority of the California State Assembly.

But Heckman did not stop there.

According to KCRA, Newsom's lawyers argued the entire issue was moot because the California Assembly later passed a similar law. But Heckman disagreed, saying the issue was not just about Newsom's actions on mail-in ballots but whether he has the power "to exercise legislative powers by unilaterally amending, altering, or changing existing statutory law or making new statutory law."

In fact, Heckman ruled definitively that the California Emergency Services Act "does not give the Governor the power or authority to amend statutory law or create new statutory law even during a state of emergency."

Finally, Heckman said Newsom's order violated the legal doctrine of separation of powers.

"The doctrine of separation of powers prohibits any of the three branches of government exercising the complete power constitutionally vested in another or exercising power in a way which undermines the authority and independence of another," Heckman wrote.

Author: Chris Enloe

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