Republican National Committee et al v. Newsom et al

Filing 1

COMPLAINT against Gavin Newsom, Alex Padilla by all plaintiffs. Attorney Weir, Bryan Kipp added. (Filing fee $ 400, receipt number 0972-8904757) (Weir, Bryan)

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Bryan Weir (SBN: 310964)
Thomas R. McCarthy*
Tyler R. Green*
Cameron T. Norris*
Alexa R. Baltes*
CONSOVOY MCCARTHY PLLC
1600 Wilson Boulevard, Suite 700
Arlington, VA 22209
[phone]
Harmeet K. Dhillon (SBN: 207873)
Mark P. Meuser (SBN: 231335)
DHILLON LAW GROUP INC.
177 Post Street, Suite 700
San Francisco, CA 94108
[phone]
[phone] (fax)
*Application for admission
pro hac vice forthcoming

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UNITED STATES DISTRICT COURT

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EASTERN DISTRICT OF CALIFORNIA

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REPUBLICAN NATIONAL
COMMITTEE; NATIONAL
REPUBLICAN CONGRESSIONAL
COMMITTEE; and CALIFORNIA
REPUBLICAN PARTY,
Plaintiffs,

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No.

COMPLAINT FOR DECLARATORY
AND INJUNCTIVE RELIEF

v.
GAVIN NEWSOM, in his official capacity
as Governor of California; and ALEX
PADILLA, in his official capacity as
California Secretary of State,
Defendants.

Plaintiffs, the Republican National Committee, National Republican Congressional
Committee, and California Republican Party, bring this action against Defendants, Gavin Newsom,
in his official capacity as Governor of California, and Alex Padilla, in his official capacity as

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Secretary of State of California, to have Governor Newsom’s Executive Order N-64-20 declared

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unlawful, to enjoin its enforcement, and to obtain all other appropriate relief. Plaintiffs allege as

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follows:

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INTRODUCTION
1.

The U.S. Constitution entrusts state legislatures to set the time, place, and manner

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of congressional elections and to determine how the state chooses electors for the presidency.

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California’s legislature has enacted valid laws to that end.

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2.

In a direct usurpation of the legislature’s authority, Governor Newsom issued an

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executive order purporting to rewrite the entire election code for the November 2020 election. This

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brazen power grab was not authorized by state law and violates both the Elections Clause and

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Electors Clause of the U.S. Constitution. The Governor’s Order is invalid and must be enjoined.

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3.

Moreover, in his haste, the Governor created a system that will violate eligible

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citizens’ right to vote. By ordering that vote-by-mail ballots be automatically sent to every

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registered voter—including inactive voters, voters with invalid registrations, voters who have

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moved, voters who have died, and voters who don’t want a ballot—he has created a recipe for

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disaster. No State that regularly conducts statewide all-mail elections automatically mails ballots

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to inactive voters because it invites fraud, coercion, theft, and otherwise illegitimate voting.

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Fraudulent and invalid votes dilute the votes of honest citizens and deprive them of their right to

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vote in violation of the Fourteenth Amendment.

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4.

Finally, the Governor reserved for himself the sole discretion to choose if and where

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in-person voting will occur. Such unbridled discretion, which leads to arbitrary and disparate

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treatment of individual voters, violates the Equal Protection Clause of the Fourteenth Amendment.

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5.

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enjoined.

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For all these reasons and more, Executive Order N-64-20 is illegal and must be

JURISDICTION AND VENUE
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This Court has subject matter jurisdiction because this action arises under the

Constitution and laws of the United States. 28 U.S.C. §§ 1331 & 1343.
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Venue is proper because a substantial part of the events giving rise to the claims
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Complaint for Declaratory and Injunctive Relief

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occurred in this District, and the Defendants reside in this District. Id. § 1391.

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PARTIES
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Plaintiff Republican National Committee (RNC) is a national political party with its

principal place of business at 310 First Street S.E., Washington D.C., 20003.
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The RNC organizes and operates the Republican National Convention, which

nominates a candidate for President and Vice President of the United States.
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The RNC represents over 30 million registered Republicans in all 50 states, the

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District of Columbia, and the U.S. territories. It is comprised of 168 voting members representing

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state Republican Party organizations.

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The RNC works to elect Republican candidates to state and federal office. In

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November 2020, its candidates will appear on the ballot in California for most federal and state

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offices. In elections for the U.S. House of Representatives, for example, the Cook Political Report

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lists seven California races as “competitive”—including two “toss ups.”

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12.

The RNC has a vital interest in protecting the ability of Republican voters to cast,

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and Republican candidates to receive, effective votes in California elections and elsewhere. The

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RNC brings this suit to vindicate its own rights in this regard, and in a representational capacity to

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vindicate the rights of its member voters and candidates.

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13.

The RNC also has an interest in preventing the Governor’s sweeping and unilateral

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changes to California election law. Major or hasty changes confuse voters, undermine confidence

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in the electoral process, and create incentive to remain away from the polls. Thus, the Governor’s

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order forces the RNC to divert resources and spend significant amounts of money educating voters

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on those changes and encouraging them to vote regardless.

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14.

Plaintiff National Republican Congressional Committee (NRCC) is a qualified

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national party committee devoted to increasing the number of Republicans in the U.S. House of

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Representatives. The NRCC is organized under Section 527 of the Internal Revenue Code.

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15.

The NRCC supports the election of Republicans to the House through direct

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financial contributions to candidates and Republican Party organizations; technical and research

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assistance to Republican candidates and party organizations; voter registration, education, and
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turnout programs; and other party-building activities.

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The NRCC has the same interests in this case, and seeks to vindicate those interests

in the same ways, as the RNC.

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Plaintiff California Republican Party (CAGOP) is a political party in California with

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its principal place of business at 1001 K Street, 4th Floor, Sacramento, CA 95814. The Republican

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State Central Committee (RSCC) is the CAGOP’s governing body. The RSCC and the CAGOP

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exercise their “federal and state constitutional rights, as set forth in the First and Fourteenth

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Amendments to the United States Constitution, and Article IV, Section 5 ... to represent and speak

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for [their] members [and] to endorse and to nominate candidates for all partisan elective offices.”

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Section 1.04.01 of the CAGOP Bylaws.

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as of February 18, 2020.

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The CAGOP represents over 4.9 million registered Republican voters in California

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The CAGOP has the same interests in this case, and seeks to vindicate those interests

in the same ways, as the RNC and NRCC.

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20.

Defendant Gavin Newsom is the Governor of California. He is charged with the

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“executive power” of the State, including the responsibility to “see that the law is faithfully

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executed.” Cal. Const. art. V, §1. He is sued in his official capacity.

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Defendant Alex Padilla is the California Secretary of State. Secretary Padilla is

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California’s chief elections officer and oversees all elections within California. His duties include

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ensuring that all election laws and campaign disclosure requirements are enforced, certifying the

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official lists of candidates for elections, and certifying election results. He is sued in his official

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capacity.

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BACKGROUND
I.

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The Perils of Hastily Moving to By-Mail Voting Without the Necessary Safeguards
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Creating opportunities for ineligible voters to cast ballots invites fraud and

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undermines the public’s confidence in the integrity of elections—all of which violate the right to

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vote.

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According to the Commission on Federal Election Reform—a bipartisan
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commission chaired by former President Jimmy Carter and James Baker, and cited extensively by

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the U.S. Supreme Court—absentee voting* is “the largest source of potential voter fraud.” Building

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Confidence in U.S. Elections 46, https://bit.ly/3dXH7rU (Carter-Baker Report). Many well-

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regarded commissions and groups of diverse political affiliation agree that “when election fraud

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occurs, it usually arises from absentee ballots.” Michael T. Morley, Election Emergency Redlines

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2, https://bit.ly/3e59PY1 (Morley, Redlines). Such fraud is easier to do and harder to detect. As one

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federal court put it, “absentee voting is to voting in person as a take-home exam is to a proctored

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one.” Griffin v. Roupas, 385 F.3d 1128, 1131 (7th Cir. 2004).

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“Absentee balloting is vulnerable to abuse in several ways.” For one, ballots are

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sometimes “mailed to the wrong address or to large residential buildings” and “might get

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intercepted.” Carter-Baker Report 46. For another, absentee voters “who vote at home, at nursing

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homes, at the workplace, or in church are more susceptible to pressure, overt and subtle, or to

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intimidation.” Id. And “[v]ote buying schemes are far more difficult to detect when citizens vote

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by mail.” Id. For example, “[i]ndividuals can sign and sell their absentee ballot,” or “[o]ne spouse

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can coerce the other to sign the ballot and hand it over to them to vote fraudulently.”

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This risk of abuse is magnified by the fact that “many states’ voter registration

databases are outdated or inaccurate.” Morley, Redlines 2.
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A 2012 study from the Pew Center on the States—which the U.S. Supreme Court

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cited in a recent case—found that “[a]pproximately 24 million—one of every eight—voter

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registrations in the United States are no longer valid or are significantly inaccurate”; “[m]ore than

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1.8 million deceased individuals are listed as voters”; and “[a]pproximately 2.75 million people

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have registrations in more than one state.”

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Similarly, a 2010 study by the Caltech/MIT Voting Technology Project found that

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roughly 9% of listed registration records in the United States are invalid.” On top of those invalid

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records, “in the typical state 1 in 65 records is duplicative, meaning that the same registrant is listed

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multiple times.” The same study found that “[i]n the typical state, 1 in 40 counted votes in the 2008

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The terms “absentee” and “by-mail” are used interchangeably for purposes of this
complaint.
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general election cannot be matched to a registrant listed as having voted” and that “1 in 100 listed

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registrants is likely to be deceased.”

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28.

These discrepancies result from bureaucratic failures, intentional fraud, and

inadvertent mistakes.
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Because of these widespread inaccuracies, a state that sends ballots to all registered

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voters will necessarily send ballots to persons with fake registrations, invalid registrations, or

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outdated registrations. Placing hundreds of thousands of ballots “outside of both election officials’

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control and the hands of voters who are supposed to be casting them raises a serious threat to both

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the actual and perceived integrity of the electoral system.” Morley, Redlines 3.

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These risks are compounded by the practice of ballot harvesting—that is,

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coordinated efforts to have third parties collect absentee ballots from voters and drop them off at

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polling places or elections centers.

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Ballot harvesters are usually third parties—campaign workers, union members,

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political activists, paid personnel, volunteers, or others. They go door-to-door and offer to collect

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and turn in ballots for voters. “In some documented cases, the workers collecting the ballots have

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entered into voters’ homes to help them retrieve and fill out their ballots.”

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32.

“Ballot harvesting gives third parties who may be completely unknown to both the

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voter and election officials the opportunity to potentially tamper with absentee ballots” in any one

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of a number of ways. Morley, Redlines 5. For instance, “[h]arvesters may pressure voters into

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giving them blank ballots or casting their votes a certain way,” or, “[w]hen a voter has voted for

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the ‘wrong’ candidate, the harvester may surreptitiously change the vote, include additional votes

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to void the ballot, or simply dispose of the ballot rather than returning it.” Id.

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33.

These forms of misconduct are incredibly difficult to detect. The practice is

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“especially concerning when third parties who are not related to the voter—and who may not even

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be known to the voter—are permitted to harvest unlimited numbers of ballots, frequently without

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having to identify themselves to election officials or note their identity on the ballots’ envelopes.”

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Morley, Redlines 4.

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34.

To be sure, vote-by-mail can be a legitimate feature of a state’s election process,
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when coupled with adequate procedural safeguards to deter fraud. But given the many risks

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discussed above, in most states it is an alternative implemented carefully and slowly and only with

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such safeguards in place.

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35.

One procedural safeguard is the practice of mailing ballots only to reasonably

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identifiable voters. The few states that routinely conduct elections entirely by mail do not send

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ballots to all registered voters. Rather, they limit automatic mailing of ballots only to active

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registered voters. E.g., Utah Code §20A-3-302(2)(b)(i) (may only be sent to “active voters”); Rev.

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Code of Wash. §29A.40.010 (may only be sent to “active registered voters”); Ore. Rev. Stat.

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§254.470 (may only be sent to “active electors”); Colo. Rev. Stat. § 1-7.5-107(3)(a)(I) (“shall mail

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to each active registered elector”); Haw. Rev. Stat. § 11-102(b) (“The clerk shall not mail a ballot

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package to any voter in the county register who is identified as having an outdated or non-

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deliverable mailing address.”). Active voters are typically defined as voters who have voted

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recently and election officials have no reason to think have moved.

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Other safeguards include laws requiring election officials to match a voter’s

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signature on an absentee ballot envelope to the signature on the voter’s registration, require a

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witness signature on the ballot envelope, or require the voter to provide some identifying

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information when returning their ballot. Many states also regulate ballot harvesting by prohibiting

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or severely limiting a third party’s ability to collect and return another person’s absentee ballot.

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See, e.g., Ind. Code § 3-14-2-16(4); Conn. Gen. Stat. § 9-140b(a); N.M. Stat. Ann. § 1-6-10.1; Ga.

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Code Ann. § 21-2-385(a); Mo. Rev. Stat. § 115.291(2); Nev. Rev. Stat. Ann. § 293.330(4); Okla.

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Stat. tit. 26, § 14-108(C); Ohio Rev. Code Ann. § 3509.05(A); Tex. Elec. Code Ann. § 86.006(a).

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37.

Federal law also recognizes the risks of voting by mail and thus requires certain

first-time voters to present identification. See 52 U.S.C. § 21083(b).
38.

In reaction to COVID-19, several states have altered, or tried to alter, their ordinary

election practices to expand vote-by-mail for 2020 elections.
39.

Much of the push toward all-mail voting has been driven by litigation initiated by

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the Democratic Party. The Democratic National Committee, state Democratic parties, and several

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affiliated groups have filed lawsuits across the country to force a hurried transition to no-excuse
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mail-in voting, eliminate voter-identification requirements, and remove other existing safeguards.

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Democrats pushed these changes long before COVID-19 because they believe that the resulting

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free-for-all will help their electoral prospects. Unable to persuade legislatures to adopt these

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changes, Democrats have turned to the courts, arguing that COVID-19 means that their preferred

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changes are now mandated by the Constitution. Indeed, according to the Democrats’ top lawyer,

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“If [these lawsuits] gain 1 percent of the vote [for Democrats], that would be among the most

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successful tactics that a campaign could engage in.”

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40.

But COVID-19 does not warrant throwing out longstanding safeguards that protect

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the integrity of elections. In fact, it makes those safeguards more important. “[E]ven when voter

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registration records are accurate, voters may not be staying at their addresses of record. If stay-at-

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home orders remain in place, voters may be staying with family or friends for the duration of the

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quarantine.” Morley, Redlines 3. “Thus, automatically mailing out millions of ballots to addresses

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where voters may not be located will lead to millions of unaccounted-for ballots, facilitates ballot

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theft, and can lead to inadvertent or intentional double voting.” Id.

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41.

These concerns have been realized in jurisdictions that switched to mail-in voting

for their Spring 2020 elections.
42.

For example, Clark County, Nevada is currently administering the state’s first ever

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all-mail primary. The Las Vegas Review-Journal reported that, within the first week of voting,

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photographic evidence surfaced of numerous ballots “tossed in trash cans and littering apartment

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mailbox areas.”

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On May 8, 2020, one Clark County voter found “about a dozen ballots pinned to the

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complex’s bulletin board or otherwise thrown around.” Over the next few days, he found many

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more in nearby trash cans.

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In a different apartment complex, another voter saw ballots “sticking out of

residents’ mailboxes and ‘at least a dozen’ were sitting in nearby garbage cans.”

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45.

Another resident received a ballot at her home addressed to her deceased mother.

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46.

A U.S. Postal Service worker serving the area witnessed the breadth of the problem.

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She recounted that, over the course of multiple days, she saw an “influx of absentee ballots”—as a
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many as 100 in a single day—that were “‘no good,’” often because they had been sent to recipients

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who had moved or died. “In all, she said there were thousands [of ballots] sitting in crates with no

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additional safeguards and marked to be sent back to the county.”

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47.

The New Jersey media has reported that similar problems took root in Paterson, New

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Jersey in the May 12 election for Second Ward City Council—the “first election in state history

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that was contested only by mail-in voting.”

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48.

were gathered illegally.

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49.

Hundreds of mail-in ballots were collected from single mailboxes. In one case, 366

ballots were picked up from the same mailbox.

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More than 800 mail-in ballots were set aside in Paterson due to suspicion that they

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In some cases, “large quantities of mail-in ballots were fastened together with a

rubber-band and dropped at the same location.”

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There have been reports of Paterson voters not receiving their ballots as well as

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reports of “letter carriers leaving massive numbers of ballots in a bin at a particular apartment

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building.”

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In addition, one candidate reported that many people’s “votes were paid for and still

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others who had no idea that they voted or who they voted for because someone filled out a mail-in

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ballot for them.”

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II.

California Is Ill-Equipped to Rapidly Shift to Vote-By-Mail Elections.

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53.

California has had persistent problems updating its voter rolls.

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54.

In early 2019, the State and the County of Los Angeles were forced to settle a lawsuit

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after Judicial Watch exposed that L.A. County had on its voter rolls more than 1.5 million

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potentially ineligible voters—meaning that “more than one out of every five LA County

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registrations likely belong[ed] to a voter who has moved or is deceased.” California and Los

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Angeles County to Remove 1.5 Million Inactive Voters from Voter Rolls – Settle Judicial Watch

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Federal Lawsuit, Judicial Watch (Jan. 3, 2019), https://bit.ly/2WOrmxW.

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55.

That lawsuit uncovered that neither California nor L.A. County had been removing

inactive voters from the voter rolls for the past 20 years. Id. Relying on data from the Election
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Assistance Commission, an independent federal agency, Judicial Watch found that L.A. County

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had a registration rate of 112% of its adult citizen population and that the entire state of California

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had a registration rate of about 101% of its age-eligible citizenry. See Judicial Watch, Inc. v. Logan,

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Complaint 7, https://bit.ly/3cPYXwK.

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56.

While the settlement exposed the problem and led to some superficial fixes, it did

not solve the problem.

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57.

For instance, following the settlement, San Diego County removed 500,000 voter

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registrations from its rolls, but as recently as November 2019, federal data indicates that San Diego

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still has a registration rate of 117%. NVRA Notices 2019 California, https://bit.ly/3e4aKaY.

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Similarly, as of December 12, 2019, Judicial Watch determined that Orange County

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had not removed any voter registrations in the last two-year reporting period; maintained 380,000

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inactive voter registrations on the County’s rolls (about one in every five registrations); and had an

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unusually high registration rate of 96%.

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Most recently, the Election Integrity Project California (EIPCa) reported that, as of

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February 18, 2020, 13 California counties—a combined area that represents roughly 46% of the

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state’s total population—have more registered voters than eligible citizens.

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EIPCa also found that, according to data produced on February 18, 2020, L.A.

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County has 206,728 registrants who have neither voted nor updated their registrations since

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November 2008 or before, and 8,158 persons who have two active voter registrations in their

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names.

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61.

The Secretary of State has admitted that several voters cast two ballots in the 2020

primary.
62.

Last year it became clear that some 1,500 individuals, including noncitizens, were

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mistakenly registered to vote because of California’s new automatic voter registration law. Those

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particular registrations were canceled, but the blunder raised “questions about what other mistakes

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had been made.” Indeed, the LA Times reported that an independent audit found that California’s

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motor voter program, which was launched in April 2018, led to 83,684 duplicate voter registrations

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and more than twice that number for political party mistakes.
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63.

California’s record of failing to comply with the federal requirement to create and

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maintain a “centralized, interactive computerized statewide voter registration list” is well known.

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52 U.S.C. § 21083(a)(1)(A). This federally mandated system was also a key recommendation of

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the Commission on Federal Election Reform. California’s distinction as the last state to comply

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with this requirement after nearly two decades of trying has led to the ongoing problem of duplicate

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registrations and other inaccuracies in California’s voter rolls. Those inaccuracies are uniquely

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exploitable under the state’s plans to mail a ballot to every registered voter.

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64.

In addition to neglect and inadvertence, California has done little to comply with

federal requirements to prevent intentional, fraudulent expansion of voter rolls.
65.

For example, in a press release on February 19, 2020, the District Attorney for L.A.

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County reported that a 62-year-old man pleaded guilty “for his role in a scheme where money and

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cigarettes were allegedly offered to homeless people on Skid Row in exchange for [hundreds of]

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false and forged signatures on ballot petitions and voter registration forms.” https://bit.ly/2LJGINB.

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The offenses are alleged to have taken place during the 2016 and 2018 election cycles. Id.

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66.

One California man concerned that voter registration was “open online, with no in-

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person trip or photo ID … required” registered his four dogs, and attempted to register his deceased

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father, to vote over the course of many years. He began registering his dogs to vote in 1996 and

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they each received verification of their registration status, complete with identification numbers.

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He called to tell authorities what he was doing, but the Monterey County District Attorney’s Office

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did not stop him until 2018, when they charged him with a felony after he began the process of

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registering his deceased father.

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67.

California’s bloated registration rolls and lack of oversight and due diligence present

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enormous risks of voter fraud and general-election illegitimacy. “[E]ven if [California] ha[s] record

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turnout for the 2020 election, it is reasonable to assume that a substantial number of voters will

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remain uninterested in participating. Automatically mailing vote-by-mail ballots to tens of millions

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of people who do not wish to receive or cast them would irrevocably undermine the integrity of the

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electoral process. It would create a substantial risk of ballots being given away, sold, traded,

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collected by activists, or stolen from trashcans or mailboxes.” Morley, Redlines 3-4.
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68.

Finally, California has some of the most permissive ballot-harvesting practices in

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the nation. In 2016, then-Governor Jerry Brown signed AB1921, making it legal for anyone to

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collect and turn in an absentee or mail-in ballot of another. California “allows, and even encourages,

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partisan activists to ‘cross the threshold’ into voters’ homes to help them retrieve and fill out their

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ballots.”

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69.

California refused to walk back its permissive ballot harvesting laws even during

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the peak of the coronavirus pandemic. That decision is directly at odds with the alleged current

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justification for all-mail elections—reducing human interaction during the COVID pandemic.

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III.

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California’s Existing Vote-by-Mail Laws
70.

As a general matter, the California Legislature has chosen not to conduct all-mail

elections, except in limited circumstances—or to automatically send vote-by-mail ballots to voters.

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71.

California law contains two sets of provisions governing mail-based voting.

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72.

The first set, California Election Code §§ 3000-26, allows voters to cast vote-by-

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mail ballots as an alternative to in-person voting in any election. Importantly, a voter must submit

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an application in order to receive a vote-by-mail ballot. Cal. Elec. Code § 3001(a)-(b). The

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application may be submitted in written form, id. §3001, or electronically through a website, id.

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§ 3007.5. Local election officials also have discretion to accept applications for vote-by-mail

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ballots by phone. Id. § 3007.8(a). And voters may request “permanent vote by mail status.” Id.

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§3201.

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73.

The application process protects the integrity of the vote-by-mail process by helping

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verify the identity of the voter who requests the ballot and ensuring that the same eligible voter who

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requests the ballot ultimately receives it.

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74.

State law specifies the information that a vote-by-mail ballot application must

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contain. Id. § 3006; see also id. § 3007 (requiring the Secretary of State to prepare a uniform

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application form). The uniform application, consistent with state and federal law, asks for the

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applicant’s date of birth as an added measure of security. An election official generally may not

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send a vote-by-mail ballot to a voter in an ordinary election unless the voter submits a written

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application. “[C]ounty elections official shall begin mailing [vote-by-mail ballots] to qualified
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applicants for vote by mail ballots, including voters who are permanent vote by mail voters.” Id.

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§ 3001(b). Before sending a vote-by-mail ballot to a voter, election officials must confirm that the

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information contained on the application and signature (for written requests) matches the

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information in the voter’s registration file. Id. § 3009(a). If a voter lives in a precinct with less than

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250 registered voters, however, election officials can eliminate the polling place for that precinct

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and instead automatically mail vote-by-mail ballots to all registered voters in that jurisdiction

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without receiving a written application. Id. § 3005(a).

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75.

The second set of provisions governing mail-in voting, California Election Code

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§§ 4000-07, governs elections conducted “wholly by mail.” An election may be conducted wholly

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by mail if a local governing body authorizes it; the election is held on a statutorily specified date;

11

and the election either involves fewer than 1,000 voters or concerns certain special tax, assessment,

12

expenditure, or water-related issues. Id. § 4000.

13
14

76.

Small cities with a population under 100,000 residents may also conduct special

elections to fill vacancies exclusively by mail. Id. § 4004(c)(2).

15

77.

Counties are more broadly permitted to hold any election as an all-mail election

16

provided that they affirmatively choose to opt-in and comply with various procedural safeguards.

17

Id. §§ 4005, 4007.

18

78.

These restrictions on all-mail elections deter fraud and abuse. California law also

19

treats all-mail elections as an alternative, not the norm—available only in special circumstances.

20

IV.

21
22
23
24
25
26
27
28

California’s Reponses to COVID-19 and Governor Newsom’s Issuance of Executive
Order N-64-20
79.

On March 4, 2020, Governor Newsom proclaimed a state of emergency in California

due to COVID-19.
80.

On March 19, 2020, Governor Newsom issued Executive Order N-33-20, better

known as the “Stay-at-Home Order.” By that order, Governor Newsom commanded “all individuals
living in the State of California to stay home or at their place of residence except as needed to
maintain continuity of operations of the federal critical infrastructure sectors.”
81.

On April 14, 2020, Governor Newsom issued California’s “Roadmap to Modify the
13

Complaint for Declaratory and Injunctive Relief

1

Stay-at-Home Order.” In a press release announcing the roadmap’s release, Governor Newsom

2

highlighted the State’s “progress in flattening the curve” and underscored its “increased

3

preparedness of our health care delivery system,” explaining that the State’s COVID-19

4

interventions “have yielded positive results.”

5

82.

On April 28, 2020, Governor Newsom identified the four phases of California’s plan

6

to reopen its economy, as part of his Update on California’s Pandemic Roadmap. Governor

7

Newsom explained that, at that time, the State was in Phase 1.

8

83.

Governor Newsom described Phase 2 as the reopening of lower risk workplaces,

9

with some adaptations. In particular, Phase 2 would involve the reopening of retail businesses,

10

manufacturing, and offices (when telework is not possible), as well as more public spaces. Phase 2

11

would also involve the reopening of schools and childcare facilities with adaptations.

12

84.

Governor Newsom described Phase 3 as the reopening of “higher risk environments

13

with adaptations and limits on size of gatherings.” These so-called higher risk workplaces

14

necessitate close proximity between people and would include personal care businesses (such as

15

hair and nail salons and gyms), entertainment venues (such as movie theaters and sports without

16

live audiences), and in-person religious services.

17
18
19
20
21

85.

Governor Newsom described Phase 4 as the reopening of all other businesses—that

is, the end of the Stay-at-Home Order.
86.

On May 4, 2020, Governor Newsom issued an “Update on California’s Pandemic

Roadmap,” announcing that the State would move to Phase 2 of its reopening plan.
87.

On May 7, 2020, Dr. Mark Ghaly, California Secretary of Health and Human

22

Services, said that data showing stable hospitalization rates gave authorities confidence to move to

23

Phase 2.

24
25
26
27
28

88.

On May 8, 2020, the State moved to Phase 2. It took “the first significant step in

reopening its economy … by loosening restrictions for certain businesses.”
89.

In his daily press conference on May 8, 2020, Governor Newsom emphasized that

Phase 3 “may not even be more than a month away.”
90.

On the same day that Governor Newsom highlighted all the progress that has been
14

Complaint for Declaratory and Injunctive Relief

1

made toward overcoming the pandemic in just a few short months, the Governor issued Executive

2

Order N-64-20, which relies on the current state of emergency to rewrite California’s election laws

3

for an election that is six months away.

4
5

91.

Executive Order N-64-20 orders the automatic distribution of vote-by-mail ballots

for the November 3, 2020 general election to every person registered to vote in California.

6

92.

The Executive Order acknowledges that it conflicts with the state’s validly enacted

7

election law; Governor Newsom simply issued the order “[n]otwithstanding any limitation on the

8

distribution of vote-by-mail ballots in Elections Code sections 1500 and 4000-4007, or any other

9

provision of state law.”

10

93.

In addition, Executive Order N-64-20 claims for Governor Newsom the

11

discretionary power to decide whether and how in-person voting will be made available for the

12

November election, and “how other details of the November election will be implemented.”

13
14

94.

Despite rewriting the election code for an election six months away, California

continues to make significant progress towards reopening.

15

95.

On May 18, Governor Newsom gave a news conference in which he indicated that

16

California’s move to Phase 3 was just around the corner. He explained that professional sports, hair

17

salons, and churches may open as early as the first week of June. He did not explain how Executive

18

Order N-64-20 could be justified in light of such progress.

19

96.

This inconsistency, coupled with Executive Order N-64-20’s timing amid a nation-

20

wide push by the Democratic Party for the same measures, reveals that the Order is less about

21

protecting the health of Californians and more about protecting the electoral prospects of the

22

Governor’s political party.

23

V.

24
25
26
27
28

The Elections Clause and the Electors Clause of the U.S. Constitution Reserve for
State Legislatures the Power to Regulate Elections.
97.

The Elections Clause of the U.S. Constitution states that “[t]he Times, Places, and

Manner of holding Elections for Senators and Representatives, shall be prescribed in each State by
the Legislature thereof.” Art. I, § 4, cl. 1 (emphasis added). Likewise, the Electors Clause of the
U.S. Constitution states that “[e]ach State shall appoint, in such Manner as the Legislature thereof
15
Complaint for Declaratory and Injunctive Relief

1

may direct, a Number of Electors” for President.” Art. II, § 1, cl. 2 (emphasis added).

2

98.

The Legislature is “‘the representative body which ma[kes] the laws of the people.’”

3

Smiley v. Holm, 285 U.S. 355, 365 (1932). Regulations of congressional and presidential elections,

4

thus, “must be in accordance with the method which the state has prescribed for legislative

5

enactments.” Id. at 367; see also Ariz. State Legislature v. Ariz. Indep. Redistricting Comm’n, 135

6

S. Ct. 2652, 2668 (2015).

7

99.

Because the U.S. Constitution reserves for state legislatures the power to set the

8

time, place, and manner of holding elections for Congress and the President, state executive officers

9

have no authority to unilaterally exercise that power, much less conflict with existing legislation.

10

100.

Nor could the authority to ignore existing legislation be delegated to an executive

11

officer. While the Elections Clause “was not adopted to diminish a State’s authority to determine

12

its own lawmaking processes,” Ariz. State Legislature, 135 S. Ct. at 2677, it does hold states

13

accountable to their chosen processes when it comes to regulating federal elections, id. at 2668;

14

Smiley, 285 U.S. at 365.

15

101.

In California, the Governor is not the Legislature and thus cannot exercise legislative

16

power. “The powers of state government are legislative, executive, and judicial. Persons charged

17

with the exercise of one power may not exercise either of the others except as permitted by this

18

Constitution.” Cal. Const Art. III, §3. “As an executive officer, [the Governor] is forbidden to

19

exercise any legislative power or function except as in the Constitution expressly provided.” Lukens

20

v. Nye, 105 P. 593, 594 (Cal. 1909). Far from providing the Governor the power to exercise the

21

legislative power to regulate elections, the California Constitution expressly instructs that “[t]he

22

Legislature shall prohibit improper practices that affect elections.” Cal. Const. Art. II, §4 (emphasis

23

added).

24

102.

Therefore, under no construction may an executive order by the Governor be

25

considered legislation or something that can override existing legislation. “[T]he Governor is not

26

empowered, by executive order or otherwise, to amend the effect of, or to qualify the operation of

27

existing legislation.” 63 Cal. Op. Att’y Gen. 583 (1980).

28

103.

Even if the Legislature could, under the California Constitution, give the Governor
16

Complaint for Declaratory and Injunctive Relief

1

carte blanche to override duly enacted election laws, the statutes cited by Governor Newsom as the

2

source of authority for Executive Order N-64-20 do not purport to do so.

3
4
5

104.

Governor Newsom claims the authority to discount valid legislation from California

Government Code Sections 8567, 8571, and 8627.
105.

Section 8567 allows the Governor to issue “orders and regulations” that “have the

6

force and effect of law.” But these orders are not themselves legislation, and they cannot contradict

7

existing legislation.

8

106.

9
10
11

Section 8627 allows the Governor to commandeer state “agencies” and exercise the

State’s “police power.” But it gives him no legislative authority or the power to contradict existing
statutes.
107.

Section 8571 allows the Governor, “during a … state of emergency,” to “suspend

12

any regulatory statute, or statute prescribing the procedure for conduct of state business … where

13

the Governor determines and declares that strict compliance … would in any way prevent, hinder,

14

or delay the mitigation of the effects of the emergency.” The act of suspending laws, however, is

15

“executive,” not legislative. Cf. Hendricks v. Hanigan, 2002 WL 397648, at *9 (Cal. Ct. App. Mar.

16

14, 2002).

17

108.

Even if the California Legislature could delegate to the Governor the power to

18

override its legislative power to regulate elections and the process of selecting electors, and even if

19

§ 8571 reflected such a delegation, Governor Newsom’s Order does not fall within the scope of

20

that statute. It exceeds the scope of § 8571 in at least four ways.

21

109.

First, § 8571 limits the Governor’s power to suspend statutes to “regulatory

22

statute[s]” and “statute[s] prescribing the procedure for conduct of state business.” Election laws

23

are neither.

24

110.

“Generally, a ‘regulatory statute’ is the result of the exercise of the state’s police

25

power to enact regulations to promote the public health, morals or safety, and the general well-

26

being of the community.” See Com. v. CSX Trans., Inc., 639 A.2d 1213, 1214 (Pa. Super. Ct. 1994).

27

That is certainly true in California. See, e.g., Rosenblatt v. Cal. State Bd. of Pharmacy, 158 P.2d

28

199, 202 (Cal. 1945) (using licensing laws as examples of “regulatory statutes”); Williams v.
17
Complaint for Declaratory and Injunctive Relief

1

Kapilow & Son, Inc., 164 Cal. Rptr. 176, 180 (Ct. App. 1980) (similar); People v. Simon, 886 P.2d

2

1271, 1289 (Cal. 1995) (using “public welfare” as a synonym for “regulatory statute”). To that end,

3

regulatory statutes govern the issuing of licenses and the regulation of business and public utilities

4

so as to “‘protect the public from incompetence and dishonesty’” and ensure quality. MW Erectors,

5

Inc. v. Niederhauser Ornamental & Metal Works Co., 115 P.3d 41, 55 (Cal. 2005); see Fascination,

6

Inc. v. Hoover, 246 P.2d 656, 662 (Cal. 1952); Rosenblatt, 158 P.2d at 202; Motor Transit Co. v.

7

R.R. Comm’n of Cal., 209 P. 586, 589 (Cal. 1922). Election laws are not regulatory statutes.

8

111.

Nor are election laws statutes “prescribing the procedure for conduct of state

9

business” during an emergency. In emergencies, California law gives the Governor powers, such

10

as §§ 8571, 8567, and 8627, to get rid of roadblocks that slow government responsiveness to a

11

particular crisis, thus ensuring “the most efficient and effective response.” See Macias v. California,

12

897 P.2d 530, 538 (Cal. 1995); see also Planning & Conserv. League v. Dep’t of Fish & Game, 67

13

Cal. Rptr.2d 650, 659-60 (Ct. App. 1997) (discussing § 8571 and the “need to promptly and

14

effectively respond to an emergency”). Specifically, § 8571 allows the Governor to cut through red

15

tape by suspending procedures that would ordinarily and directly slow or delay government action.

16

For example, during a time of severe electrical shortages that constituted a state of emergency, the

17

Governor relied on § 8571 to suspend competitive bidding requirements so that the Department of

18

Water Resources could “enter into contracts and arrang[e] for the purchase and sale of electric

19

power with public and private entities and individuals as may be necessary to assist in mitigating

20

the effects of th[e] emergency” without hinderance. See Hendricks, 2002 WL 397648, at *10.

21

112.

The entire election code is not a “procedure” that functions as an administrative

22

hurdle over which the state must ordinarily climb in order to act in the interest of public health. It

23

cannot be suspended under § 8571. Indeed, the fact that Governor Newsom could not merely

24

suspend the election laws, but also had to affirmatively replace them with a brand new regime—

25

power not granted by § 8571—is evidence that the elections laws are not a mere “procedure”

26

covered by the statute.

27
28

113.

Moreover, federal elections are not “state business” under §8571. State business

refers to the functioning of state government. See, e.g., Cal. Govt. Code § 19851(a) (permitting
18
Complaint for Declaratory and Injunctive Relief

1

overtime “where it is necessary to carry on the state business properly during a manpower

2

shortage”); Cal. Govt. Code § 11005.5 (regulating acquisition of property to be used “for the

3

conduct of state business”).

4
5
6

114.

Second, § 8571 allows the Governor to suspend statutes only “[d]uring … a state of

emergency.”
115.

While California is presently in a declared state of emergency, Governor Newsom’s

7

Executive Order purports to suspend laws that have no effect for many months. Those laws, in other

8

words, will not be suspended “during” the state of emergency.

9

116.

Further, under § 8571, Governor Newsom was required to find that COVID-19 will

10

present “extreme peril to the safety of persons within the State” in November, or that it will “require

11

the combined forces of a mutual aid region or regions to combat” in November. Cal. Gov’t Code

12

§ 8558(b); see Martin v. Mun. Court, 196 Cal. Rptr. 218, 221 (Ct. App. 1983) (“The Governor must

13

state the circumstances of the emergency found to exist and that the emergency is found to be

14

beyond local control measures.”); Calif. Corr. Peace Officers Ass’n v. Schwarzenegger, 77 Cal.

15

Rptr. 3d 844, 856 (Ct. App. 2008) (“the proclamation” must at least “set[] forth circumstances that

16

support the implied finding” of an emergency). Governor Newsom has made no such finding.

17

117.

Governor Newsom’s own decisions establish that California will not still be under

18

a state of emergency in November. Under his direction, the state is currently in the process of

19

reopening. Governor Newsom recently announced that the State has moved to Phase 2 of the 4-

20

phase plan to fully reopen and will begin moving to Phase 3 as early as the first week of June.

21
22
23

118.

In any event, Governor Newsom did not find that California will be in a state of

emergency in November.
119.

Third, in order to exercise the limited power granted by § 8571 to suspend statutes,

24

the Governor must “determine[] and declare[] that strict compliance” with the suspended laws

25

would “prevent, hinder, or delay the mitigation of the effects of the emergency.” While this

26

language grants the Governor discretion, it does not grant him a blank check.

27
28

120.

The power to “determine and declare” carries an obligation to draw conclusions

based on reasoned analysis. See, e.g., Zee Med. Distrib. Ass’n, Inc. v. Zee Med., Inc., 94 Cal. Rptr.2d
19
Complaint for Declaratory and Injunctive Relief

1

829, 833 (Ct. App. 2000); Mueller v. Bd. of Ret. Of Los Angeles Cty. Emp. Ret. Ass’n, 10 Cal.

2

Rptr.2d 45, 54 (Ct. App. 1992), reh’g denied and opinion modified, (Aug. 18, 1992); Mercury Cas.

3

Co. v. Chu, 178 Cal. Rptr.3d 144, 149 (2014); People v. Mahoney, 91 P.2d 1029, 1032 (Cal. 1939).

4

California has specifically determined that even when acting under a grant of emergency power

5

that allows an executive officer to do “whatever … he may deem necessary,” exercises of that

6

power “must be reasonable and are subject to judicial review.” Verreos v. City & Cty. of San

7

Francisco, 133 Cal. Rptr. 649, 655-56 (Ct. App. 1976).

8
9
10

121.

Governor Newsom’s conclusory assertion that strict compliance with existing

election laws in November would hinder mitigation of COVID-19 was arbitrary and capricious.
122.

The Executive Order contains a boilerplate statement that “various statutes specified

11

in this Order would prevent, hinder, or delay” mitigation, but it does not state or even intimate that

12

any election laws—save those that pertain to in-person voting—threaten to spread COVID-19. And

13

even under the unilateral regime imposed by Executive Order N-64-20, in-person voting will still

14

be available, contradicting the notion that it cannot be done safely and effectively.

15

123.

Even during the height of the pandemic, Wisconsin was able to hold in-person

16

elections while also preserving voters’ safety. On election day in Wisconsin, an estimated 413,000

17

people voted in person. “Experts said a surge [in coronavirus cases] tied to the election would have

18

appeared in statewide data at the end of April, given the incubation period of the coronavirus. But,

19

no surge appeared.” The most reliable study of the Wisconsin election found that the rate of new

20

cases of COVID-19 actually decreased after the election.

21

124.

Moreover, the Executive Order simply does not acknowledge that California already

22

has a system set up for people to vote by mail. Voters must simply submit an application in order

23

to receive a vote-by-mail ballot. Cal. Elec. Code §§ 3001(a)-(b), 3003. Voters generally have until

24

the seventh day prior to the election to apply for a vote-by-mail ballot, id. § 3001(a), which means

25

that for the November 3, 2020 election, voters would have until October 27, 2020.

26

125.

To the extent that Governor Newsom determined the ordinary process of applying

27

for a vote-by-mail ballots would cause people to act in a way that hindered the mitigation of the

28

heath crisis, he could have ordered that vote-by-mail applications (not ballots) be sent to all
20
Complaint for Declaratory and Injunctive Relief

1

registered voters without suspending any statute.

2

126.

Fourth, § 8571 allows the Governor to suspend state statutes, not the state

3

Constitution. See Peace Officers, 77 Cal. Rptr. 3d at 857. Because the California Constitution

4

unambiguously instructs that “[t]he Legislature shall prohibit improper practices that affect

5

elections,” Cal. Const. Art. II 4, section 8571 should not be read to allow the Governor to suspend

6

election-integrity measures. See People v. Garcia, 391 P.3d 1153, 1160 (Cal. 2017) (“[A] statute

7

should not be construed to violate the Constitution if any other possible construction remains

8

available.”).

9

127.

The Legislature cannot give the Governor the power to frustrate its constitutional

10

mandate. Indeed, the Supreme Court has never held “that a state legislature may prescribe

11

regulations on the time, place, and manner of holding federal elections in defiance of provisions of

12

the State’s constitution.” Ariz. State Legislature, 135 S. Ct. at 2673.

13

128.

In sum, the Elections Clause and the Electors Clause both vest the state Legislature

14

with the power to legislate the manner of elections and the selection of electors; that power cannot

15

be delegated in blanket fashion. But in any event, none of the statutes cited by Executive Order N-

16

64-20 purports to delegate to the Governor the power to legislate. And to the extent that § 8571

17

grants the Governor power to suspend certain statutes, the Executive Order’s wholesale rewriting

18

of the state’s election code does not fall within its reach.

19

VI.

20
21
22
23
24
25
26
27
28

The Fourteenth Amendment to the U.S. Constitution Prohibits Practices that Promote
Fraud and Dilute Valid Votes.
129.

According to the Supreme Court, the Fourteenth Amendment of the U.S.

Constitution protects the “the right of all qualified citizens to vote, in state as well as in federal
elections.” Reynolds v. Sims, 77 U.S. 533, 554 (1964). “Obviously included within the right to
[vote], secured by the Constitution, is the right of qualified voters within a state to cast their ballots
and have them counted.” United States v. Classic, 313 U.S. 299, 315 (1941). “[T]he right to have
the vote counted” means counted “at full value without dilution or discount.” Reynolds, 377 U.S.
at 555 n.29 (quoting South v. Peters, 339 U.S. 276, 279 (1950) (Douglas, J., dissenting)).
130.

Both direct denials and practices that otherwise promote fraud and dilute the
21

Complaint for Declaratory and Injunctive Relief

1

effectiveness of individual votes, thus, can violate the Fourteenth Amendment. See id. at 555

2

(“[T]he right of suffrage can be denied by a debasement or dilution of the weight of a citizen’s vote

3

just as effectively as by wholly prohibiting the free exercise of the franchise.”).

4

131.

“Every voter in a federal … election, whether he votes for a candidate with little

5

chance of winning or for one with little chance of losing, has a right under the Constitution to have

6

his vote fairly counted, without its being distorted by fraudulently cast votes.” Anderson v. United

7

States, 417 U.S. 211, 227 (1974); see also Baker v. Carr, 369 U.S. 186, 208 (1962).

8

132.

Fraudulent votes “debase[]” and “dilute” the weight of each validly cast vote. See

9

Anderson, 417 U.S. at 227. When it comes to “‘dilut[ing] the influence of honest votes in an

10

election,’” whether the dilution is “‘in greater or less degree is immaterial’”; it is a violation of the

11

Fourteenth Amendment. Id. at 226.

12

133.

The Fourteenth Amendment does not tolerate actions such as those in Executive

13

Order N-64-20 because automatically sending ballots (as opposed to applications for ballots) to all

14

persons (or rather, to all names) registered to vote makes fraud and other forms of illegal voting

15

inevitable.

16

134.

Ample evidence from Nevada, New Jersey, and other jurisdictions demonstrates that

17

voter fraud—or even inadvertent double voting or non-fraudulent illegal voting—is guaranteed

18

when hundreds of thousands of ballots are indiscriminately distributed, regardless of whether a real,

19

eligible, present, or desiring person exists to receive them.

20
21

135.

What has proven true in other jurisdictions will take on new and worse dimensions

in California, given its notoriously deficient voting rolls and loose oversight.

22

136.

When citizens are denied the right to vote in this way, the validity of the electoral

23

process crumbles. Voters lose their constitutional rights. Candidates are injured by invalid election

24

returns. And parties must divert time and resources to educate voters, get out of the vote, and

25

encourage voters not to lose their faith in the system.

26

VII.

27
28

The Equal Protection Clause of the Fourteenth Amendment Prohibits the Arbitrary
and Indiscriminate Treatment of Similarly Situated Voters.
137.

The Equal Protection Clause of the U.S. Constitution requires States to “‘avoid
22

Complaint for Declaratory and Injunctive Relief

1

arbitrary and disparate treatment of the members of its electorate.’” Charfauros v. Bd. of Elections,

2

249 F.3d 941, 951 (9th Cir. 2001) (quoting Bush v. Gore, 531 U.S. 98, 105 (2000)); see also Dunn

3

v. Blumstein, 405 U.S. 330, 336 (1972) (“[A] citizen has a constitutionally protected right to

4

participate in elections on an equal basis with other citizens in the jurisdiction.”); Gray v. Sanders,

5

372 U.S. 368, 380 (1963) (“The idea that every voter is equal to every other voter in his State, when

6

he casts his ballot in favor of one of several competing candidates, underlies many of [the Supreme

7

Court’s] decisions.”).

8

138.

“[T]reating voters differently” thus “violate[s] the Equal Protection Clause” when

9

the disparate treatment is the result of arbitrary, ad hoc processes. Charfauros, 249 F.3d at 954.

10

Indeed, a “minimum requirement for nonarbitrary treatment of voters [is] necessary to secure the

11

fundamental right” to vote. Bush, 531 U.S. at 105.

12

139.

The use of “standardless” procedures can violate the Equal Protection Clause. Bush,

13

531 U.S. at 103. “The problem inheres in the absence of specific standards to ensure … equal

14

application” of even otherwise unobjectionable principles. Id. at 106. Any voting system that

15

involves discretion by decisionmakers about how or where voters will vote must be “confined by

16

specific rules designed to ensure uniform treatment.” Id. at 106.

17

140.

Executive Order N-64-20, by declaring an ongoing discretionary power to determine

18

if and where in-person voting will be available without any neutral criteria for making that

19

determination, fails to establish standards or rules that will ensure uniform treatment.

20
21
22

141.

Such unbridled discretion allows the Governor to put polling places in arbitrary

locations, locations favorable to his political party, or only in certain localities.
142.

This is not a hypothetical concern. In the special election held in California’s 25th

23

District earlier this month, the L.A. County Registrar strategically opened a new vote center at the

24

eleventh hour in an area that primarily votes Democratic—without opening any new vote centers

25

in areas that predominately vote Republican. Doling out opportunities and accessibility for voting

26

predicated on party affiliation is a clear violation of the Equal Protection Clause.

27
28
23
Complaint for Declaratory and Injunctive Relief

1

CAUSES OF ACTION

2

COUNT I
Violation of the Elections Clause (42 U.S.C. § 1983)

3
4
5
6
7
8
9
10
11
12
13
14
15
16
17
18

143.

Plaintiffs incorporate all their prior allegations.

144.

Executive Order N-64-20 changes the time, place, and manner in which Californians

will participate in the November 3, 2020 congressional election.
145.

Defendants are not “the Legislature,” and therefore have no power under the

Elections Clause to determine the time, place, or manner of congressional elections. See U.S. Const.
art. I, §4.
146.

The State Legislature could not, and did not, delegate to the Governor the power to

suspend ballot-integrity laws on the books.
147.

Even on its own terms, § 8571 does not authorize the actions taken in Executive

Order N-64-20.
148.

The Executive Order thus violates the Elections Clause of the U.S. Constitution.

149.

Defendants have acted and will continue to act under color of state law to violate

the Elections Clause.
150.

Plaintiffs have no adequate remedy at law and will suffer serious and irreparable

harm to their constitutional rights unless Defendants are enjoined from implementing and enforcing
Executive Order N-64-20.

19
20
21
22
23
24
25
26
27
28

COUNT II
Violation of the Electors Clause (42 U.S.C. § 1983)
151.

Plaintiffs incorporate all their prior allegations.

152.

Executive Order N-64-20 changes the manner in which California will appoint

electors during the November 3, 2020 presidential election.
153.

Defendants are not “the Legislature,” and therefore have no power under the

Electors Clause to determine the manner in which Californians will appoint electors. See U.S.
Const. art. II, §1.
154.

The State Legislature could not, and did not, delegate to the Governor the power to

suspend ballot-integrity laws on the books.
24
Complaint for Declaratory and Injunctive Relief

1
2

155.

Even on its own terms, § 8571 does not authorize the actions taken in Executive

Order N-64-20.

3

156.

The Executive Order thus violates the Electors Clause of the U.S. Constitution.

4

157.

Defendants have acted and will continue to act under color of state law to violate

5

the Electors Clause.

6

158.

Plaintiffs have no adequate remedy at law and will suffer serious and irreparable

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harm to their constitutional rights unless Defendants are enjoined from implementing and enforcing

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Executive Order N-64-20.

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COUNT III
Violation of the Right to Vote (42 U.S.C. § 1983)

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159.

Plaintiffs incorporate all their prior allegations.

160.

Executive Order N-64-20, which upends validly enacted election law and requires

automatic mailing of ballots to all registered voters—especially given California’s rampant invalid
voter registration and ineffective safeguards—makes voter fraud and other ineligible voting
inevitable.
161.

votes violates the right to vote. Reynolds, 377 U.S. at 555; Anderson, 417 U.S. at 226-27; Baker,
369 U.S. at 208.
162.

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Defendants’ new, unauthorized voting system facilitates fraud and other illegitimate

voting practices, and therefore violates the Fourteenth Amendment to the U.S. Constitution.
163.

Defendants have acted and will continue to act under color of state law to violate

the Fourteenth Amendment.
164.

Plaintiffs have no adequate remedy at law and will suffer serious and irreparable

harm to their constitutional rights unless Defendants are enjoined from implementing and enforcing
Executive Order N-64-20.
COUNT IV
Violation of the Equal Protection Clause (42 U.S.C. § 1983)

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Dilution of honest votes, to any degree, by the casting of fraudulent or illegitimate

165.

Plaintiffs incorporate all their prior allegations.
25

Complaint for Declaratory and Injunctive Relief

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166.

The Equal Protection Clause imposes a “minimum requirement for nonarbitrary

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treatment of voters” and forbids voting systems and practices that distribute election resources in

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“standardless” fashion, without “specific rules designed to ensure uniform treatment.” Bush, 531

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U.S. at 105-06; Brunner, 548 F.3d at 477-78.

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167.

Executive Order N-64-20 reserves for Defendants the discretion to determine “the

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extent to which in-person voting opportunities are made available in connection with the November

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3, 2020 General Election.” There are no standards or rules to ensure uniform treatment.

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168.

Executive Order N-64-20 thus violates the Equal Protection Clause.

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169.

Defendants have acted and will continue to act under color of state law to violate

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the Equal Protection Clause of the Fourteenth Amendment.
170.

Plaintiffs have no adequate remedy at law and will suffer serious and irreparable

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harm to their constitutional rights unless Defendants are enjoined from implementing and enforcing

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Executive Order N-64-20.

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WHEREFORE, Plaintiffs ask this Court to enter judgment in their favor and provide the
following relief:
a. A declaratory judgment that Executive Order N-64-20 violates the Elections Clause, the
Electors Clause, and the Fourteenth Amendment.
b. A permanent injunction prohibiting Defendants from implementing and enforcing
Executive Order N-64-20;
c. A temporary restraining order and preliminary injunction granting the relief specified
above during the pendency of this action;

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d. Plaintiffs’ reasonable costs and expenses, including attorneys’ fees; and

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e. All other preliminary and permanent relief that Plaintiffs are entitled to, and that the Court

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deems just and proper.

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Dated: May 24, 2020

Respectfully submitted,

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Complaint for Declaratory and Injunctive Relief

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/s/ Bryan K. Weir
Bryan K. Weir (SBN: 310964)
Thomas R. McCarthy*
Tyler R. Green*
Cameron T. Norris*
Alexa R. Baltes*
CONSOVOY MCCARTHY PLLC
1600 Wilson Boulevard, Suite 700
Arlington, VA 22209
[phone]

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Harmeet K. Dhillon (SBN: 207873)
Mark P. Meuser (SBN: 231335)
DHILLON LAW GROUP INC.
177 Post Street, Suite 700
San Francisco, CA 94108
[phone]
[phone] (fax)

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*Application for admission
pro hac vice forthcoming

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Complaint for Declaratory and Injunctive Relief