California Governor Gavin Newsom last week signed into law a bill that will send mail-in ballots to every registered and active voter in the state for the November election. While it’s nearly identical to an executive order the Governor made in May, the legislation hopes to put a number of current and potential legal challenges to bed.
While the bill, AB860, is not immune from lawsuits, the Governor and other supporters of the legislation are hoping that achieving bipartisan support in both the State Assembly and State Senate puts the law onto firmer legal ground. While also avoiding the court proceedings that plagued the Governor’s executive order.
Two Assemblymen, Kevin Kiley (R-Rocklin) and James Gallagher (R-Yuba City) had previously won a temporary restraining order, blocking the implementation of the Governor’s executive order. The pair had filed their suit on the grounds that the Governor’s use of executive power had usurped the state Legislature.
Assemblyman Berman (D-Menlo Park), the original author of the legislation, said the kind of defeat that the Governor’s executive order experienced in the courts was precisely the reason he introduced AB860. Berman cited the Wisconsin Supreme Court’s decision that overruled an executive order by Governor Tony Evers. That ruling upended the state’s plan for its Presidential Primary just days before polls opened.
Gallagher and Kiley, meanwhile, had made it clear that the reason for filing their suit was not to challenge the validity of sending mail-in ballots to voters, but rather that the executive order unconstitutionally cut out the state Legislature from the decision-making process.
“Regardless of party or political preferences, we should all agree that separation of powers are important. Checks and balances are important,” Assemblyman Gallagher wrote in a June 13 Facebook post. “The Legislature is in session and has the Constitutional authority to legislate,” he added.
“This is a victory for separation of powers.” Assemblyman Kiley wrote in a Facebook post made shortly after a Superior Court Judge issued a ruling against the Governor. “The Governor has continued to issue orders without public input and without the deliberative process provided by the Legislature,” Kiley added.
As the courts dealt with the Governor’s executive order, AB860 received wide bipartisan support in both houses of the California State Legislature. That includes the support of Assemblymen Kiley and Gallagher who were two of the eight Republicans that crossed party lines to vote for the legislation in the Assembly where it passed with a 68-5 vote.
In the State Senate, three Republicans joined with nearly all of the Democrats to pass the bill with a 31-7 vote. Only one Democrat in the Legislature did not vote in favor of AB860, that was Sen. Melissa Hurtado (D-Sanger) who did not cast a vote.
Assemblyman Gallagher, speaking on the floor of the State Assembly during debate of AB860, commended the bill’s author, Assemblyman Berman, for being open to discussion and input from other members of the Assembly. Including Berman’s willingness to accept an amendment that would explicitly say no inactive voter would be sent a ballot.
“The author took amendments to make it very clear that no inactive voter would receive a mail ballot, which I think is an important protection,” Gallagher said. He noted that while this provision is already a part of state law, it needed to be clarified specific to AB860.
Assemblyman Berman thanked Governor Newsom for taking quick action in signing the bill without delay. “Californians will start voting in just over 100 days. In the midst of a deadly health pandemic, mailing a ballot to every California voter, and giving them the opportunity to vote from the safety of their own home, is the responsible thing to do,” Berman said.
Assemblyman Jim Patterson (R-Fresno) who represents Clovis was one of five members who voted against the bill in the State Assembly. Meanwhile, Sen. Andreas Borgeas (R-Fresno) who represents Clovis in the State Senate did not cast a vote.
The Clovis Roundup reached out to Sen. Borgeas and Assemblyman Patterson on Friday afternoon and as of Monday morning had not received a response. This story will be updated with comments from Borgeas or Patterson if we get them.
On June 17, one day before AB860 was signed, a Justice on the Third District Court of Appeals issued a stay of the lower court’s ruling. Essentially, overruling the Superior Court Judge and allowing the executive order to stand while the case progressed through the judicial system.
With the passage and signing of AB860 into law, Kiley and Gallagher’s lawsuit is likely to become a moot point, though. They may choose to drop the case, or it may be dismissed by a judge now that AB860 has been signed.
California Secretary of State Alex Padilla supported the bill and said in a statement that a “…few simple measures in AB860 will further strengthen and complement the expansion of vote-by-mail. Providing vote-by-mail tracking options to all California voters will improve voter confidence. Allowing lawfully cast vote-by-mail ballots to arrive to election officials 17 days following the election will protect against any disruptions in the postal service. And affording elections officials more time to process vote-by-mail ballots will help with the efficiency of the vote count process for this unprecedented election.”
For those who wish to vote in person at a vote center or polling place, this bill does not prevent or eliminate that option. Voters will still be able to access vote centers to receive in-person assistance if needed.