[EL] California Governor Newsom's order that ballots for the November election be sent to all registered voters

[Mark Scarberry]

California Governor Newsom has ordered that ballots for the November
election be sent to all registered voters:

https://www.gov.ca.gov/2020/05/08/governor-newsom-issues-executive-order-to-protect-public-health-by-mailing-every-registered-voter-a-ballot-ahead-of-the-november-general-election/
 ;
https://www.gov.ca.gov/wp-content/uploads/2020/05/05.08.2020-EO-N-64-20-text.pdf
 ;
https://www.gov.ca.gov/wp-content/uploads/2020/05/05.08.2020-EO-N-64-20-signed.pdf
.

Here is a quick analysis. Please excuse any errors.

This appears to be the operative portion of his order:

Notwithstanding any limitation on the distribution of vote-by-mail
ballots in Elections Code sections 1500 and 4000-4007, or any other
provision of state law, each county elections officials shall transmit
vote-by-mail ballots for the November 3, 2020 General Election to all
voters who are, as of the last day on which vote-by-mail ballots may
be transmitted to voters in connection with that election, registered to
vote in that election. As set forth in this paragraph, every Californian
who is eligible to vote in the November 3, 2020 General Election shall
receive a vote-by-mail ballot.


Newsom cites California Government Code sections 8567 and 8571 (both within
Article 3. "Powers of the Governor," in Chapter 7, "California Emergency
Services Act") and section 8627 (within Article 13. "State of Emergency,"
in that Chapter).

Section 8567(a): "The Governor may make, amend, and rescind orders and
regulations necessary to carry out the provisions of this chapter. The
orders and regulations shall have the force and effect of law ... ."

Section 8571: "During a state of war emergency or a state of emergency the
Governor may suspend any regulatory statute, or statute prescribing the
procedure for conduct of state business, or the orders, rules, or
regulations of any state agency ...  where the Governor determines and
declares that strict compliance with any statute, order, rule, or
regulation would in any way prevent, hinder, or delay the mitigation of the
effects of the emergency."

Section 8627: "During a state of emergency the Governor shall, to the
extent he deems necessary, have complete authority over all agencies of the
state government and the right to exercise within the area designated all
police power vested in the state by the Constitution and laws of the State
of California in order to effectuate the purposes of this chapter. In
exercise thereof, he shall promulgate, issue, and enforce such orders and
regulations as he deems necessary, in accordance with the provisions of
Section 8567."

Does his order *"suspend"* a regulatory statute under section 8571?
Perhaps. (I have not found any definition of "regulatory statute.")

Elections Code section 4005 allows California counties to choose to conduct
"all-mailed ballot election[s]," if (among other requirements), the county
election officials mail ballots to each registered voter per section
4005(a)(8(a). Newsom's order arguably *suspends* the statutory limit on
such elections by eliminating the need for a county to choose to have
"all-mailed ballot election[s]." And then the county officials arguably are
required to send ballots to all registered voters.

It is also possible that the county governments (except for the City and
County of San Francisco to some extent) that are entitled to make that
choice are "agencies of the state government," because they are subject to
state regulation and have no California constitutional independent power.
(I have not found any statutory definition of "agency of the state
government.") If so, Newsom arguably could make the choice for the county
to have an all-mailed ballot election and accordingly meet the requirement
of mailing ballots to all registered voters.

Others will have far more expertise on these matters than I have.


Mark

[image: Pepperdine wordmark]*Caruso School of Law*

*Mark S. Scarberry*

*Professor of Lawmark.scarberry at pepperdine.edu
<mark.scarberry at pepperdine.edu>*
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