Although he is legally required to do so, Attorney General Xavier Becerra has allegedly refused to comply with a request to issue an opinion on the validity of Gov. Newsom’s appointment of Alex Padilla to the Senate, according to Assemblyman Kevin Kiley (R-Roseville).
“At some point, an elected Senator has to take over but it seems Gov. Newsom is not doing that,” Kiley said. “The appointment needs to be temporary.”
After Becerra failed to respond to Kiley’s request for clarification, the Assemblyman approached the Legislative Counsel Bureau about the vacancy left behind by Vice President Kamala Harris whose six-year term would have expired on Jan. 3, 2023.
“The Legislative Counsel is well respected and nonpartisan,” Kiley told the Southern California Record. “Their whole job is to provide guidance on issues for the legislature and the governor and so it seems that if the governor wants to disagree with my opinion, that's one thing but if he's disagreeing with the nonpartisan Legislative Counsel's office, that's quite another. It underscores the extent to which Gov. Newsom doesn't feel bound by the rules set forth in our Constitution.”
Gov. Newsom did not immediately respond to requests for comment.
On Dec. 28, Kiley received a letter, signed by Deputy Legislative Counsel Alyssa Kaplan, which included the following directives:
Gov. Newsom is required to issue a Writ of Election when a vacancy in a Senate seat occurs.
“The Legislative Counsel is saying that the governor must, at least some point before the end of the current Senate term, call a special election or offer an opportunity for voters to choose who finishes Senator Harris's term and thus far the governor has given no indication he intends to do that and that he just intends for Padilla to finish out the term,” Kiley said. “That’s illegal.”
The Seventh Amendment and Elections Code allow for an appointee and an elected successor to be the same person.
“The Legislative Counsel's opinion determined that yes Padilla could run in an election,” Kiley said. “I think there's at least an argument to be made that it has to be someone different but I think they make a reasonable argument.”
When a Senate vacancy occurs, a governor must issue a Writ of Election and the state must hold an election to fill the vacancy even if the governor also made an appointment to fill the vacancy temporarily, according to Section 10720 of the Elections Code.
“The issue is that it seems to suggest that the governor can, in fact, make an appointment to have someone finish Senator Harris’ term but that's exactly what the Constitution doesn't allow,” Kiley said. “So, that sentence is, according to the Legislative Counsel's office, not constitutional. The Constitution is a higher form of law than a state statute.”