[EL] Suspending Access to the Courts for Elections Challenges

[Scott Rafferty]

I am seeking help and guidance regarding what I believe to be an
unprecedented trial court order in *Kincaid v. San Juan USD*, holding that
a Governor has emergency power to eliminate the ability to file a court
challenge to the structure of an imminent election.   The court precluded
an earlier appeal when it overruled a demurrer on procedural grounds, but
stated that the Governor's action survived strict scrutiny.  Last week's
ruling on partial summary adjudication dismisses a claim under the
California Voting Rights Act (CVRA) because emergency order N-48-20
retroactively extended a pre-filing notice period, effectively precluding
judicial resolution of challenges to at-large elections that had been
initiated in time to prevent at-large elections in 2020.

Four of San Juan's five trustees (including the three up for election in
2020) live within a 2 mile radius of the district office, which is just
over 15% of the population and land area of the District.  Attorneys for
San Juan USD and Folsom Cordova USD had requested the ban on court access,
falsely writing the Governor that registrars "across the state" were
refusing to implement timely filed districting maps due to the pandemic.
 When Folsom Cordova's board learned of the letter, it stated that it would
be a dereliction of duty to "take advantage of the Governor's order."
 Numerous
jurisdictions proceeded (Napa, Napa Valley USD, FCUSD, Central Contra Costa
SD).   San Juan USD and Santa Clarita did not.

The CVRA allows jurisdictions to invoke a 90-day "safe harbor" process set
forth in Section 10010 to comply voluntarily with the CVRA, which prohibits
most at-large elections.   As a result, notices of violation needed to be
filed prior to early February 2020, so that bodies could be required to
submit maps to the registrar in time for the November 2020 election.   In
April 2020, Governor Newsom issued N-48-20 indefinitely extending the
notice period.   Because the order retroactively tolled the period from
March 20, 2020 and was not expired until July 1, 2021, it effectively
precluded seeking judicial enforcement against at-large elections in all of
the jurisdictions that had been given timely notice for the 2020 election.


The interlocutory order does not address plaintiff's extended argument on
the due process, equal protection and separation of powers issues.  The
order cites Gov. Brown's use of emergency powers to authorize mail
elections due
to a wildfire in 2018.  But that order was subject to judicial review, and
similar orders (about mail balloting or mask mandates) were reviewed in
other states during the 2020 pandemic.   As near as I can tell, there is no
precedent for abrogating court jurisdiction to assess the constitutionality
of an executive order itself, especially in the context of one eliminating
an established legal process for preventing minority vote dilution.   The
order claims a failure to exhaust administrative remedies, but numerous
cases under the Prisoner Litigation Reform Act (42 USC 1997e) which uses
almost identical language, makes clear courts have jurisdiction if the
remedy is not available due to the pandemic.

N-48-20 contrasts every other Newsom order, in that he did not consult with
the Legislature (or allow for legislative modification) and did not set
periodic review and renewal of the extended deadline.  By contrast, his
order on the eviction moratorium modified legislation so that the judicial
council could implement a much briefer ban on summons as a matter of case
management.

Scott Rafferty
1913 Whitecliff Ct
Walnut Creek CA 94596
 mobile 202-380-5525
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