Appellate Court Rules Governor Newsom’s Mail-in Voting Orders Under the Emergency Services Act Were Not an Unconstitutional Delegation of Legislative Power

Fortin Law Group

Published: June 01, 2021

On May 8, 2020, Governor Newsom issued Executive Order No. N-64-20 which required that all California voters be provided with vote-by-mail ballots. The Order acknowledged an ongoing effort to establish requirements for in-person voting and processes for the November 2020 election. Subsequently, on June 3, 2020, Governor Newsom issued Executive Order No. N-67-20 (“the Order”) which affirmed that all counties in the State would mail vote by mail ballots to eligible voters and provide the Secretary of State with a vote-by-mail tracking system. Other provisions regarding logistics were also addressed. The Order affirmed that the Governor was working in partnership with the Legislature and Secretary of State but that it should not “be construed to limit in any way the enactment of legislation concerning the November 3, 2020, General Election.”

James Gallagher (Real Party in Interest) challenged the Order as an unconstitutional exercise of legislative power reserved for the Legislature and that it was not permitted via the Emergency Services Act (Government Code Section 8550 et seq.). Gallagher sought an injunction against the Governor from exercising legislative power and from unilaterally amending, altering, or changing existing statutory law or making new law. The Superior Court, a day after Gallagher filed his Complaint, granted an ex parte temporary restraining order suspending the Order and an order to show cause why the Governor shouldn’t be permanently enjoined from implementing the Order. The Governor took a writ of mandate to vacate the ex parte restraining order which was granted on July 10th. However, in the interim, on June 18th, the Governor signed various Assembly Bills (which took effect immediately as an urgent statute) which signed into law the provisions of the Order as well as other orders issued during the emergent situation of the COVID-19 pandemic.

The Appellate Court addressed the issue of the Emergency Services Act (“ESA”) and the Governor’s powers granted under the ESA. The Court held that the ESA confers broad powers on the Governor and charges him with the responsibility to provide a coordinated response to an emergency. Due to the very nature of emergent situations, the Court found that the ESA does not require standards of implementation but rather safeguards against arbitrariness. The Court held that the ESA has such safeguards since the ESA terminates the Governor’s powers to act when the state of emergency is terminated (either by the Governor or by the Legislature). Once the state of emergency is terminated, the orders issued are nullified (as soon as the conditions warrant). In other words, the ESA is not a statute of indefinite duration. The Court declared the ESA is not an unconstitutional delegation of legislative power.

Fortin Law Group has decades of experience representing public entities, including Government Code interpretation. Contact us should you wish to discuss public entity defense.

This article was provided by Fortin Law Group, Costa Mesa, California. This article is intended to provide the reader with general information regarding current legal issues. It is not construed as specific legal advice or as a substitute for the need to seek competent legal advice on specific legal matters.

Tags: 2021, Public Entity

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