(CN) — Amid the Covid-19 health crisis, a California judge ruled Monday that Governor Gavin Newsom exceeded his authority by amending state election law to require sending vote-by-mail ballots to all registered voters, calling the executive order “an unconstitutional exercise of legislative power.”
The tentative ruling by Sutter County Superior Court Judge Sarah Heckman comes just one day before Election Day, though it will not change the outcome of the 2020 election in California. Instead, the ruling reins in Newsom’s use of executive order to write new or amend existing laws.
This past March, California declared a state of emergency due to the Covid-19 pandemic. In June, Newsom issued an executive order to send vote-by-mail ballots to all registered California voters. The order also required local election officials to use a specific barcode to track ballots in the mail and changed hours of operation for polling places in certain counties leading up to the Nov. 3 general election.
In all, Newsom issued three executive orders during the state of emergency to address how voters would safely cast their ballots amidst the pandemic.
More than 50 different orders that changed several state statutes have been issued by Newsom in the last several months, all under the California Emergency Services Act (CESA). The act allows a governor to issue orders and regulations and to suspend certain statutes during a state of emergency.
Republican lawmakers called Newsom’s orders an unprecedented wielding of power by one man.
California Assemblymen James Gallagher, R-Yuba City, and Kevin Kiley, R-Rocklin, introduced a bill to overturn California’s state of emergency. They also filed suit in Sutter County Superior Court, calling into question the validity of Executive Order N-67-20, issued June 3.
While Heckman did not disturb the state of emergency, she issued a permanent injunction against Newsom. She found 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.”
She found “the Constitution gives the legislative branch the exclusive authority to make law and the executive branch the power to see that the law is faithfully executed.”
Heckman noted the parties’ positions in the case are “diametrically opposed” regarding how the governor can wield his power.
In court filings, Newsom’s lawyers said that the executive order that altered election law has been rescinded. But Heckman said there hasn’t been any official withdrawing of the order.
California lawmakers passed a separate bill that allowed for vote-by-mail ballots to be sent to voters, but Heckman said passing statutes alone did not render the matter moot. She noted local election officials still had to use the special barcode system that Newsom required in his executive order.
Newsom argued that former governors also altered election law during states of emergency. Heckman rejected the examples, finding none of them amended or created statutory law.
“To the contrary, the orders are all very limited in scope to suspend specific statutes, as the governor is expressly permitted to do under the CESA, but do not amend statutory law or create new statutes,” wrote Heckman. “The distinction is key.”
Despite the win for the GOP, Gallagher said the case is not a partisan issue.
“The filing and ruling was to ensure that our democracy works the way it’s supposed to work,” he said in a phone interview.
The representative said he’s worked with the Newsom administration in the past to bring relief for his constituents impacted by the 2018 Camp Fire. Gallagher also voted in support of vote-by-mail ballots this year, but those types of decisions need to be made by the Legislature.
“We don’t become an autocracy because we’re in an emergency,” said Gallagher, who added that the court’s ruling does not cast doubt on the November elections.
Newsom’s press secretary Jesse Melgar said Heckman’s tentative ruling “makes clear the governor’s statutory emergency authority is broad, and constitutional, and that the governor has the authority, necessary in emergencies, to suspend statutes and issue orders to protect Californians.”
To date, over 930,000 Californians have tested positive for the novel coronavirus that causes Covid-19. Nearly 18,000 have died of the disease since February.