A group associated with Judicial Watch has sued in federal court, alleging that the Elections Clause and Electors Clause of the U.S. Constitution have been violated by Gov. Gavin Newsom’s executive order, which calls for every voter in the state to receive a vote-by-mail ballot for the November 2020 election.
Among the five plaintiffs is Darrell Issa, a candidate for U.S. Representative of the 50th District, which includes San Diego County and Riverside County.
“The all-mail system ordered by Governor Newsom in Executive Order N-64-20 is an unlawful attempt to supersede and replace California election law, including the Voter's Choice Act (VCA), by imposing an entirely new system without the many qualifications required by the California Legislature before a county can opt into all-mail balloting,” wrote plaintiff’s attorney Robert Patrick Sticht of Judicial Watch in Washington, D.C. in the May 21, 2020 complaint.
Issa along with James B. Oerding, Jerry Griffin, Michelle Bolotin, and Michael Sienkiewicz filed their complaint in the Eastern District of California after Gov. Newsom ordered that some 20.6 million registered voters statewide be mailed a ballot.
“They claim there will be disenfranchisement because legitimate votes would be diluted by voter fraud,” said Rick Hasen, an election law expert and professor of law and political science at the University of California in Irvine. “Evidence of fraud connected to absentee ballots is quite small. Sending voters ballots will save the time and energy of having each voter request a ballot---a more expensive and time-consuming process.”
Gov. Newsom said at a Facebook Live press conference on May 26 that using absentee ballots in a secure, safe and honorable manner has not skewed Democratic or Republican.
“We're just focusing on public health and we want people to recognize that we are not even through phase one of this pandemic,” Gov. Newsom told journalists. “The reality is when we come into flu season, COVID-19 season, it's going to be around election time and the last thing we want to do is deny you your fundamental right to vote.”
Issa, who served in Congress from 2001 to 2019 and more recently in the Trump administration as director of the United States Trade and Development Agency, has already had to reevaluate his electoral strategy in order to campaign in the 50th Congressional District and costs for running have increased, according to the complaint.
“Previously, he registered to run for office based under the electoral system established by the California Legislature,” wrote attorney Sticht in the plaintiff’s opening brief. “Now, he must develop a new strategy to reflect that he is no longer running under an electoral system established under California law but under the ultra vires system set forth in the executive order.”
As of May 26, there were 96,733 coronavirus cases statewide and 3,814 deaths, according to the Department of Health.
Specifically, Executive Order N-64-20 states, “To preserve public health in the face of the threat of COVID-19 and to ensure that the November election is accessible, secure and safe, all Californians must be empowered to vote by mail from the safety of their own home.”