Gov. Gavin Newsom overstepped his executive authority when he issued an executive order in June specifying how counties should carry out a mostly vote-by-mail election, a Sutter County judge said in a preliminary decision on Monday.
The ruling will not effect the 2020 election, although it invalidates the election process executive order.
Judge Sarah Heckman wrote Newsom exceeded his authority and violated the separation of powers between the three branches of government when he issued Executive Order N-67-20 directing county election officials to take certain steps leading up to the general election. Newsom’s order cited the coronavirus outbreak as an emergency that warranted additional election protocol.
His order specified how many polling places and ballot drop boxes counties must have. An earlier executive order, N-64-20, required counties to send mail ballots to all registered voters.
Shortly after he issued the election orders, the Legislature passed two bills that effectively put his directives into law.
Republican Assemblymen James Gallagher of Yuba City and Kevin Kiley of Rocklin filed the lawsuit, contesting Newsom’s use of his powers.
The governor’s attorneys argued that the executive order was within the bounds of the California Emergency Services Act, which gives the governor broad authority in a state of emergency, such as the coronavirus pandemic.
But Heckman on Tuesday said the act only gives the governor power to issue orders and regulations and to suspend certain statutes — not create new ones.
“The governor does not have the power or authority to assume the Legislature’s role of creating legislative policy and enactments,” Heckman wrote in her opinion.
The court also prohibited Newsom from further exercising any power under the act which amends, alters or changes existing statutory law, or makes new statutory law or legislative policy.
The suit has received widespread public attention, especially from those who feel Newsom has acted unfairly and unilaterally in restricting economic activity during the pandemic. The hearing, conducted via live stream on Oct. 21, received thousands of views on Facebook.
Kiley and Gallagher applauded the court’s decision on Monday.
“We have been arguing that the California Emergency Services Act does not provide for one-man rule. Today, the Court agreed with us,” the lawmakers said in a joint statement. “This is a victory for separation of powers. The Governor has continued to create and change state law without public input and without the deliberative process provided by the Legislature. Today the judicial branch again gave him the check that was needed and that the Constitution requires.”
The governor’s office did not immediately respond to a request for comment on the outcome of the lawsuit, or whether they would appeal the decision when it becomes final.
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