(CN) --- In response to the pandemic last year, California Governor Gavin Newsom sent mail-in ballots to all registered voters across the state. Now a panel of judges will decide whether that was an unconstitutional overreach by a governor who sidestepped the Legislature --- or an adequate response to an emergency.
Today’s California landscape of vaccines and life beginning to return to normal are a far cry from last year. Newsom declared a state of emergency in March 2020, just after the primary election. As Covid wreaked havoc across the Golden State over the summer, Newsom issued an executive order to send vote-by-mail ballots to all registered voters for the November general elections.
The governor also required local election officials to use a specific barcode to track ballots in the mail and changed hours of operation at polling places in certain counties leading up to the Nov. 3 general election. He issued his three orders under the California Emergency Services Act (CESA), which gives the governor complete authority over state government agencies and the right to police power under state law and the Constitution.
But Sutter County Superior Court Judge Sarah Heckman saw things differently. This past November, in response to a lawsuit brought by Republican lawmakers, she ruled the CESA “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.”
In other words, Heckman found, Newsom could not amend existing election laws.
Assemblymen James Gallagher, R-Yuba City, and Kevin Kiley, R-Rocklin, brought the lawsuit. On Tuesday, they lobbied a three-judge panel at the Third Appellate District to uphold Heckman's ruling.
“The governor changed and amended state statute, which he is not authorized to do. That is a legislative power,” Gallagher told the panel. “He changed our elections at a time when our Legislature was currently considering changes for the upcoming election.”
He said Newsom usurped the Legislature’s authority and then laid out the history of abuses carried out during times of emergencies. He cited the 1944 landmark U.S. Supreme Court case Korematsu v United States, which upheld the exclusion of Japanese Americans from military areas on the West Coast during World War II.
But he didn’t get far in that argument.
Justice Vance Raye asked why quasilegislative actions, like sending ballots to voters during a pandemic, wouldn’t fall within the governor’s police powers during a state of emergency.
Gallagher said Newsom misconstrued the law, which he said only gives Newsom “super executive powers” to have authority over all government agencies --- not the Legislature.
“Then he has this police power. The full enforcement power,” said Gallagher.
Raye jumped in to read the language of the law to Gallagher. He pointed out under a state of emergency, Newsom would have police power vested in the state by the Constitution.
“That strikes me as a really expansive statement of power, delegation of power to the executive,” Raye said. “How does this offend or why does this offend you?”
Gallagher told Raye police power is not legislative power. But Raye again read from a U.S. Supreme Court ruling which said there’s no difference --- police and legislative powers are the same.
Raye then asked whether a governor can promote an order under his authority, but can’t amend a law, if that's tantamount to legislative power under CESA.
Gallagher said there has to be authorization for Newsom to amend existing laws. Even regulations have statutes, but CESA doesn’t fit into that mold, he said, before presenting the panel with a hypothetical: What if Newsom modified the environmental protection policy under the California Environmental Quality Act (CEQA) after an earthquake?
Justice Ronald Robie wondered why Newsom couldn't suspend CEQA in the event of an emergency like an earthquake.
“A suspension is not forever. Because under the Emergency Services Act, once the emergency ends, the governor’s actions ends,” said Robie.
Gallagher again said that’s not the same as amending existing laws.
Deputy Attorney General John Killeen argued Newsom could not achieve some sort of broad, long term change under his emergency powers since "there are plenty of safeguards in CESA, it’s not even close to being unconstitutional.”
Kiley, the other assemblyman who sued Newsom, asked the panel to ensure governors can't abuse a state of emergency and exercise their power outside the Legislature. He said the state of emergency has changed people’s lives over the past year.
But Robie had his own advice for the assemblymen.
“Maybe this is the time the Legislature ends the emergency if this is what you think has happened and if it has gone too far,” said Robie. “You’re part of the Legislature. Go do it.”
Kiley chuckled and said that while that’s an option, it’s separate from this issue before the panel.
The panel took the arguments under submission and did not indicate when it will rule.
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