Case: 2:20-cv-1044 As of: 06/03/2020 04:11 PM PDT 1 of 4
U.S. District Court Eastern District of California − Live System (Sacramento) CIVIL DOCKET FOR CASE #: 2:20−cv−01044−MCE−CKD

CIVIL

Issa et al v. Newsom et al Assigned to: Senior Judge Morrison C. England, Jr Referred to: Magistrate Judge Carolyn K. Delaney Related Case: 2:20−cv−01055−MCE−CKD Cause: 42:1983 Civil Rights Act
Plaintiff

Date Filed: 05/21/2020 Jury Demand: None Nature of Suit: 441 Civil Rights: Voting Jurisdiction: Federal Question

Darrell Issa

represented by Robert D. Popper , PHV Judicial Watch, Inc. 425 Third Street, S.W. Suite 800 Washington, DC 20024 202−646−5173 Fax: 202−646−5199 Email: rpopper@judicialwatch.org LEAD ATTORNEY PRO HAC VICE ATTORNEY TO BE NOTICED

T. Russell Nobile , PHV Judicial Watch, Inc. 425 Third Street, S.W., Suite 800 Washington, DC 20024 202−527−9866 Fax: 202−646−5199 Email: Rnobile@judicialwatch.org LEAD ATTORNEY PRO HAC VICE ATTORNEY TO BE NOTICED

Eric W. Lee Judicial Watch, Inc. 425 Third Street, S.W., Suite 800 Washington, DC 20024 202−646−0008 Fax: 202−646−5199 Email: elee@judicialwatch.org ATTORNEY TO BE NOTICED

Robert Patrick Sticht Judicial Watch, Inc. 425 Third Street SW Suite 800 Washington, DC 20024 202−646−5172 Fax: 202−646−5199 Email: rsticht@judicialwatch.org ATTORNEY TO BE NOTICED

Plaintiff James B. Oerding

represented by Robert D. Popper , PHV (See above for address) LEAD ATTORNEY PRO HAC VICE ATTORNEY TO BE NOTICED

T. Russell Nobile , PHV

Case: 2:20-cv-1044 As of: 06/03/2020 04:11 PM PDT 2 of 4

(See above for address) LEAD ATTORNEY PRO HAC VICE ATTORNEY TO BE NOTICED

Eric W. Lee (See above for address) ATTORNEY TO BE NOTICED

Robert Patrick Sticht (See above for address) ATTORNEY TO BE NOTICED

Plaintiff Jerry Griffin

represented by Robert D. Popper , PHV (See above for address) LEAD ATTORNEY PRO HAC VICE ATTORNEY TO BE NOTICED

T. Russell Nobile , PHV (See above for address) LEAD ATTORNEY PRO HAC VICE ATTORNEY TO BE NOTICED

Eric W. Lee (See above for address) ATTORNEY TO BE NOTICED

Robert Patrick Sticht (See above for address) ATTORNEY TO BE NOTICED

Plaintiff Michelle Bolotin

represented by Robert D. Popper , PHV (See above for address) LEAD ATTORNEY PRO HAC VICE ATTORNEY TO BE NOTICED

T. Russell Nobile , PHV (See above for address) LEAD ATTORNEY PRO HAC VICE ATTORNEY TO BE NOTICED

Eric W. Lee (See above for address) ATTORNEY TO BE NOTICED

Robert Patrick Sticht (See above for address) ATTORNEY TO BE NOTICED

Plaintiff Michael Sienkiewicz

represented by Robert D. Popper , PHV (See above for address) LEAD ATTORNEY PRO HAC VICE ATTORNEY TO BE NOTICED

T. Russell Nobile , PHV

Case: 2:20-cv-1044 As of: 06/03/2020 04:11 PM PDT 3 of 4
(See above for address) LEAD ATTORNEY PRO HAC VICE ATTORNEY TO BE NOTICED
Eric W. Lee (See above for address) ATTORNEY TO BE NOTICED
Robert Patrick Sticht (See above for address) ATTORNEY TO BE NOTICED

V. Defendant Gavin Newsom
Defendant Alex Padilla

Date Filed 05/21/2020
05/21/2020
05/21/2020 05/26/2020 05/26/2020
05/27/2020 05/27/2020
05/27/2020
06/01/2020

# Docket Text
1 COMPLAINT by all plaintiffs against all defendants. Attorney Sticht, Robert Patrick added. (Filing fee $ 400, receipt number 0972−8902326) (Attachments: # 1 Exhibit Proclamation of State of Emergency, # 2 Exhibit Executive Order N−64−20, # 3 Civil Cover Sheet)(Sticht, Robert) (Entered: 05/21/2020)
2 SUMMONS ISSUED as to *Gavin Newsom, Alex Padilla* with answer to complaint due within *21* days. Attorney *Robert Patrick Sticht* *Judicial Watch, Inc.* *425 Third Street SW, Suite* *Washington, DC 20024*. (Benson, A.) (Entered: 05/21/2020)
3 CIVIL NEW CASE DOCUMENTS ISSUED; (Attachments: # 1 Consent Form, # 2 VDRP) (Benson, A.) (Entered: 05/21/2020)
4 NOTICE of RELATED CASE(S) 2:20−at−00509 by Michelle Bolotin, Jerry Griffin, Darrell Issa, James B. Oerding, Michael Sienkiewicz. (Sticht, Robert) (Entered: 05/26/2020)
5 ORDER signed by Senior Judge Morrison C. England, Jr on 5/26/2020 REASSIGNING CASE 2:20−cv−1055−KJM−CKD to Senior Judge Morrison C. England, Jr for all further proceedings and RELATING CASES 2:20−cv−1055−MCE−CKD and 2:20−cv−1044−MCE−CKD. New Case Number: 2:20−cv−1055−MCE−CKD. (Coll, A) (Entered: 05/26/2020)
6 NOTICE of APPEARANCE by Eric W. Lee on behalf of All Plaintiffs. Attorney Lee, Eric W. added. (Lee, Eric) Modified on 5/28/2020 (Huang, H). (Entered: 05/27/2020)
7 PRO HAC VICE APPLICATION and PROPOSED ORDER submitted by All Plaintiffs for attorney Robert D. Popper to appear Pro Hac Vice. (Filing fee $ 225, receipt number 0972−8909283) (Attachments: # 1 Certificate of Good Standing)(Lee, Eric) Modified on 5/28/2020 (Huang, H). (Entered: 05/27/2020)
8 PRO HAC VICE APPLICATION and PROPOSED ORDER submitted by All Plaintiffs for attorney T. Russell Nobile to appear Pro Hac Vice. (Filing fee $ 225, receipt number 0972−8909331) (Attachments: # 1 Certificate of Good Standing)(Lee, Eric) Modified on 5/28/2020 (Huang, H). (Entered: 05/27/2020)
9 PRO HAC VICE ORDER signed by Senior Judge Morrison C. England, Jr., on 5/29/2020 ADDING Attorney Robert D. Popper, PHV for Plaintiffs. (Kastilahn, A) (Entered: 06/01/2020)

Case: 2:20-cv-1044 As of: 06/03/2020 04:11 PM PDT 4 of 4

06/01/2020 06/02/2020

10 PRO HAC VICE ORDER signed by Senior Judge Morrison C. England, Jr., on 5/29/2020 ADDING Attorney T. Russell Nobile, PHV for Plaintiffs. (Kastilahn, A) (Entered: 06/01/2020)
11 MINUTE ORDER (Text Only) issued by courtroom deputy for Senior District Judge, Morrison C. England, Jr.: The Court has reviewed the Complaints filed in Issa et al. v. Newsom et al., 2:20−cv−01044−MCE−CKD, and Republican National Committee et al. v. Newsom et al., 2:20−cv−01055−MCE−CKD. After a review of the dockets and on the Court's own motion, the following briefing schedule is ordered in both cases: Plaintiffs' Motions for Preliminary Injunction shall be filed on or before June 11, 2020, Defendants' Oppositions shall be filed on or before June 25, 2020, and Plaintiffs' Replies shall be filed on or before July 9, 2020. Request(s) for Sur−replies will not be considered. A joint hearing on Plaintiffs' Motions for Preliminary Injunction will be conducted by videoconference on July 16, 2020, at 2:00 p.m. The Court places a page limit for points and authorities (exclusive of exhibits and other supporting documentation) of twenty (20) pages on all initial moving papers, twenty (20) pages on oppositions, and ten (10) pages for replies. All requests for page limit increases must be made in writing with a proposed order setting forth any and all reasons for any increase in page limit at least seven (7) days prior to the filing of the motion. (Deutsch, S) (Entered: 06/02/2020)

 
 Case 2:20-cv-01044-MCE-CKD Document 1 Filed 05/21/20 Page 1 of 14

1 ROBERT PATRICK STICHT (SBN 138586) T. RUSSELL NOBILE*
2 ROBERT POPPER* ERIC LEE (SBN 327002)
3 JUDICIAL WATCH, INC. 425 Third Street SW, Suite 800
4 Washington, D.C. 20024 Telephone: (202) 646-5172
5 Fax: (202) 646-5199 Email: rsticht@judicialwatch.org
6 Email: Rnobile@judicialwatch.org Email: Rpopper@judicialwatch.org
7 Email: Elee@judicialwatch.org

8 *Application for admission pro hac vice forthcoming

9 Attorneys for Plaintiffs

10

UNITED STATES DISTRICT COURT

11

EASTERN DISTRICT OF CALIFORNIA

12

SACRAMENTO DIVISION

13

14

DARRELL ISSA, JAMES B. OERDING, JERRY GRIFFIN,

15

MICHELLE BOLOTIN, and MICHAEL SIENKIEWICZ

16

Plaintiffs,

17

v.

18

GAVIN NEWSOM, in his official capacity as Governor of the State of

19

California, and ALEX PADILLA, in his official capacity as Secretary of

20 State of California,

21

Defendants.

Case No. COMPLAINT FOR DECLARATORY AND INJUNCTIVE RELIEF

22

23

Plaintiffs Darrell Issa, James B. Oerding, Jerry Griffin, Michelle Bolotin, and

24 Michael Sienkiewicz, by and through the undersigned counsel, file this Complaint for

25 Declaratory and Injunctive Relief against Defendant Governor Gavin Newsom and

26 Secretary of State Alex Padilla, in their official capacities, and allege as follows:

27

1. Plaintiffs are a candidate for federal office and four registered California

28 voters, including Republicans, a Democrat, and an independent, all of whom seek

Case 2:20-cv-01044-MCE-CKD Document 1 Filed 05/21/20 Page 2 of 14

1 declaratory and injunctive relief to enjoin Executive Order N-64-20 (“EO N-64-20”),

2 which Governor Gavin Newsom issued on May 8, 2020.

3

2. EO N-64-20 mandates that all of California’s 58 counties implement all-

4 mail ballot elections for the November 3, 2020 federal elections. Plaintiffs allege that

5 the Order violates both the Elections Clause and Electors Clause of the U.S.

6 Constitution and impermissibly violates their federal constitutional and statutory rights.

7 Additionally, Plaintiffs allege the Order is ultra vires under state law.

8

JURISDICTION AND VENUE

9

3. This Court has original jurisdiction over the subject matter of this action

10 pursuant to 28 U.S.C. §§ 1331 and 1343 because the matters in controversy arise under

11 the Constitution and laws of the United States.

12

4. Venue is proper in this district pursuant to 28 U.S.C. § 1391(b) because a

13 Defendant resides in this district and because a substantial part of the events and

14 omissions giving rise to the claims herein occurred in this district.

15

5. This Court has the authority to enter a declaratory judgment and to provide

16 injunctive relief pursuant to Rules 57 and 65 of the Federal Rules of Civil Procedure

17 and 28 U.S.C. §§ 2201 and 2202.

18

PARTIES

19

6. Plaintiff Darrell Issa is a resident and a registered voter of San Diego

20 County, California, who intends to vote in the presidential and congressional elections

21 on November 3, 2020. Mr. Issa is also a candidate for United States Representative for

22 the 50th District, which includes San Diego County and Riverside County. San Diego

23 County and Riverside County have neither qualified nor opted to implement all-mail

24 ballot elections under California’s Voter’s Choice Act (S.B. 450, 2015-2016 Reg. Sess.

25 (Cal. 2016); the “VCA”), prior to the issuance of EO N-64-20.

26

7. Plaintiff James B. Oerding is a resident and a registered voter of Yolo

27 County, California, who intends to vote in the presidential and congressional elections

28 2 Complaint for Declaratory and Injunctive Relief

Case 2:20-cv-01044-MCE-CKD Document 1 Filed 05/21/20 Page 3 of 14

1 on November 3, 2020. Dr. Oerding resides in California’s 3rd Congressional District,

2 which includes parts of five counites: Glenn County, Lake County, Sacramento County

3 Solano County, and Yolo County. Yolo County, as well as Glenn, Lake, and Solano

4 Counties, had neither qualified nor opted to implement all-mail elections under the

5 VCA prior. Sacramento County had qualified and opted to implement all-mail ballot

6 elections under the VCA beginning in 2018.

7

8. Plaintiff Jerry Griffin is a resident and a registered voter of Los Angeles

8 County, California, who intends to vote in the presidential and congressional elections

9 on November 3, 2020. Mr. Griffin resides in California’s 47th Congressional District,

10 which is includes portions of Los Angeles County and Orange County. Los Angeles

11 County had qualified and opted to implement all-mailed ballot elections under the VCA

12 beginning in 2020.

13

9. Plaintiff Michelle Bolotin is a resident and a registered voter of Los

14 Angeles County, California, who intends to vote in the presidential and congressional

15 elections on November 3, 2020. Ms. Bolotin resides in California’s 33rd Congressional

16 District, which is wholly within Los Angeles County.

17

10. Plaintiff Michael Sienkiewicz is a resident and a registered voter of San

18 Francisco County, California, who intends to vote in the presidential and congressional

19 elections on November 3, 2020. Mr. Sienkiewicz resides in California’s 12th

20 Congressional District. San Francisco County, in which all of the 12th District is

21 located, has neither qualified nor opted to implement all-mail elections under the VCA.

22

11. Defendant Gavin Newsom is the Governor of the State of California. As

23 Governor, he is vested with the executive power of the state. Cal. Const., art. V, § 1.

24 He announced EO N-64-20, which mandates a new, statewide all-mail ballot system

25 for the November 3, 2020 federal election.

26

12. Defendant Alex Padilla is the California Secretary of State and the state’s

27 Chief Elections Officer. CAL. ELEC. CODE § 10. He and his office are chiefly

28 3 Complaint for Declaratory and Injunctive Relief

Case 2:20-cv-01044-MCE-CKD Document 1 Filed 05/21/20 Page 4 of 14

1 responsible for overseeing the implementation of the new all-mail ballot system

2 ordered by Governor Newsom in EO N-64-20.

3

13. Defendants Newsom and Padilla are sued in their official capacities only.

4

STATEMENT OF FACTS

5

14. Plaintiffs bring this action under 42 U.S.C. §§ 1983 and 1988 to remedy

6 deprivations of rights, privileges, or immunities secured by the Constitution and laws

7 of the United States.

8

15. The United States Constitution sets forth the authority to regulate federal

9 elections. With respect to congressional elections, the Constitution provides:

10

The Times, Places and Manner of holding Elections for Senators

and Representatives, shall be prescribed in each State by the

11

Legislature thereof; but the Congress may at any time by Law make

or alter such Regulations, except as to the Places of chusing

12

Senators.

13

U.S. CONST. art. I, § 4 (“Elections Clause”).

14

16. With respect to the appointment of presidential electors, the Constitution

15

provides:

16

Each State shall appoint, in such Manner as the Legislature thereof

17

may direct, a Number of Electors, equal to the whole Number of

Senators and Representatives to which the State may be entitled in

18

the Congress: but no Senator or Representative, or Person holding

an Office of Trust or Profit under the United States, shall be

19

appointed an Elector.

20
U.S. CONST. art. II, § 1 (“Electors Clause”).
21
17. Neither Defendant is a “Legislature” as required under the Elections
22
Clause or Electors Clause.
23
18. In 2016, the California Legislature adopted the VCA, establishing an all-
24
mail ballot system in which counties could conduct vote-by-mail elections provided
25
they qualified and opted for the system.
26

27

28 4 Complaint for Declaratory and Injunctive Relief

Case 2:20-cv-01044-MCE-CKD Document 1 Filed 05/21/20 Page 5 of 14

1

19. The VCA sets forth numerous qualifications that every county must

2 satisfy before becoming eligible to opt in.1 CAL. ELEC. CODE § 4005(a)(1)-(10).

3

20. Adoption of the VCA’s all-mail system is permissive and the affirmative

4 decision to adopt it rests with each county and its election officials.

5

21. The VCA reflects the California Legislature’s deliberate choice to

6 delegate to each county the decision about whether to qualify and opt in.

7

22. In 2018, the first election in which the VCA was in force, the Legislature

8 only allowed fourteen enumerated counties to qualify and opt in.2 CAL. ELEC. CODE §

9 4005(a). All other counties were granted the authority to qualify and opt in to the VCA

10 beginning January 1, 2020.

11

23. Only five of the fourteen enumerated counties opted in to the VCA’s all-

12 mail system during the 2018 elections.3

13

24. Ten additional counties, including some not originally authorized in 2018,

14 qualified and opted in to the VCA’s all-mail system for the 2020 elections.4

15

25. During the March 3, 2020 federal primary, fifteen California counties

16 conducted all-mailed ballot elections pursuant to the VCA, including Los Angeles

17 County where Plaintiffs Griffin and Bolotin reside.

18

26. Los Angeles County’s implementation of the VCA’s all-mail system

19 during the March primary was widely panned. Local media reports described it as an

20

21

22

1 The VCA established unique qualifications required for Los Angeles

23 County. CAL. ELEC. CODE § 4007.

2 The fourteen counties initially allowed to opt in were Calaveras, Inyo,

24 Madera, Napa, Nevada, Orange, Sacramento, San Luis Obispo, San Mateo, Santa

Clara, Shasta, Sierra, Sutter, and Tuolumne.

25

3 Those conducting vote-by-mail balloting were Madera, Napa, Nevada,

26 Sacramento, and San Mateo.

4 The ten new counties opting to conduct their elections by mail are

27 Amador, Butte, Calaveras, El Dorado, Fresno, Los Angeles, Mariposa, Orange, Santa

Clara, and Tuolumne.

28

5 Complaint for Declaratory and Injunctive Relief

Case 2:20-cv-01044-MCE-CKD Document 1 Filed 05/21/20 Page 6 of 14

1 example of “legitimate incompetence”5 while the national media referred to it as a

2 “voting fiasco.”6

3

27. The focus on Los Angeles County’s “fiasco” was necessarily short lived,

4 because the very next day Governor Newsom proclaimed a state of emergency in

5 response to the COVID-19 epidemic. See Exhibit 1, Proclamation of a State of

6 Emergency, March. 4, 2020.

7

28. In it, Governor Newsom found that conditions justified his declaration and

8 that local authorities were inadequate to cope with the emergency. Id. (citing CAL.

9 GOV’T CODE §§ 8558(b) and 8625).

10

29. He further found that “strict compliance with various statutes and

11 regulations specified in this order would prevent, hinder, or delay appropriate actions

12 to prevent and mitigate the effects of COVID-19.” Id. at 2 (citing CAL. GOV’T CODE §

13 8571).

14

30. CAL. GOV’T CODE § 8571 provides:

15

During a state of war emergency or a state of emergency the

Governor may suspend any regulatory statute, or statute prescribing

16

the procedure for conduct of state business, or the orders, rules, or

regulations of any state agency, including subdivision (d) of Section

17

1253 of the Unemployment Insurance Code, where the Governor

determines and declares that strict compliance with any statute,

18

order, rule, or regulation would in any way prevent, hinder, or delay

the mitigation of the effects of the emergency.

19

20

31. Based on these and other findings, Governor Newsom proclaimed a state

21 of emergency “in accordance to the authority vested in me by the State Constitution

22 and statutes, including the California Emergency Services Act, and in particular,

23 Government Code section 8625.” Id.

24

5 John Myers, et al., California Officials Demand Changes to L.A. Voting

25 After Election Day Chaos, L.A. TIMES, Mar. 4, 2020, available at

https://rb.gy/5hpx42 (last visited May 20, 2020).

26

6 Wall. St. J. Editorial, “California Steals Its Own Election,” WALL ST. J.,

27 Mar. 6, 2020 https://rb.gy/dimkie (last visited May 20, 2020).

28 6 Complaint for Declaratory and Injunctive Relief

Case 2:20-cv-01044-MCE-CKD Document 1 Filed 05/21/20 Page 7 of 14

1

32. While this emergency proclamation included numerous directives

2 changing state practices and the use of state resources, it was silent regarding state

3 election law.

4

33. The initial emergency proclamation does not provide an expiration date.

5

34. By law, the Governor must end the state of emergency at the earliest

6 possible date at which time all of his emergency powers will terminate. CAL. GOV’T

7 CODE § 8629.

8

35. On May 8, 2020, Governor Newsom issued EO N-64-20, attempting to

9 supersede and rewrite California’s election law for the November 3, 2020 federal

10 election. See Exhibit 2, Executive Order N-64-20, May 8, 2020.

11

36. Governor Newsom set forth several findings in the preamble to EO N-64-

12 20, including that “all Californians” needed to be empowered to vote by mail to

13 preserve the public health. Id.

14

37. EO N-64-20 acknowledged that it is still “unknown […] to what degree

15 COVID-19 will pose a threat to the public health in November[.]” Id.

16

38. As he did in his March 2020 emergency proclamation, Governor Newsom

17 again found that “strict compliance with various statutes and regulations specified in

18 this order would prevent, hinder, or delay appropriate actions to prevent and mitigate

19 the effects of COVID-19.” Id. at 2 (citing CAL. GOV’T CODE § 8571).

20

39. Governor Newsom also cited two additional statutes in EO N-64-20 that

21 were not previously cited in the emergency proclamation. First, he cited CAL. GOV’T

22 CODE § 8567, which provides that he “may make, amend, and rescind orders and

23 regulations necessary to carry out the provisions of this chapter. The orders and

24 regulations shall have the force and effect of law.”

25

40. He also cited CAL. GOV’T CODE § 8627, which provides:

26

During a state of emergency the Governor shall, to the extent he

deems necessary, have complete authority over all agencies of the

27

state government and the right to exercise within the area

designated all police power vested in the state by the Constitution

28

7 Complaint for Declaratory and Injunctive Relief

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1

and laws of the State of California in order to effectuate the

purposes of this chapter. In exercise thereof, he shall promulgate,

2

issue, and enforce such orders and regulations as he deems

necessary, in accordance with the provisions of Section 8567.

3

4

41. Based on this authority, Governor Newsom ordered the following changes

5 to how Californians will elect their congressional representatives and presidential

6 electors during the November 3, 2020 federal election:

7

1) Notwithstanding any limitation on the distribution of vote-

by-mail ballots in Elections Code sections 1500 and 4000-4007, or

8

any other provision of state law, each county elections officials

shall transmit vote-by-mail ballots for the November 3, 2020

9

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

10

with that election, registered to vote in that election. As set forth in

this paragraph, every Californian who is eligible to vote in the

11

November 3, 2020 General Election shall receive a vote-by-mail

ballot.

12

2) Nothing in this Order shall be construed to limit the extent to

13

which in-person voting opportunities are made available in

connection with the November 3, 2020 General Election. It is the

14

intent of this Order that my Administration continue to work with

the Legislature and the Secretary of State to determine how

15

requirements for in-person voting opportunities and other details of

the November election will be implemented—guided by

16

California’s longstanding commitment to making its elections

accessible, as enshrined in existing California law, while

17

recognizing the exigencies of the COVID-19 pandemic.

18

3) My Administration continues working in partnership with

the Secretary of State and the Legislature on requirements for in-

19

person voting opportunities and on how other details of the

November election will be implemented. Nothing in this Order is

20

intended, or shall be construed, to limit the enactment of legislation

on that subject.

21

Exhibit 2 at 2.

22

42. The Order does not specify which “statutes and regulations” cannot be

23 strictly complied with and must be suspended. See CAL. GOV’T CODE §8571.

24

43. The all-mail system ordered by Governor Newsom in EO N-64-20 is an

25 unlawful attempt to supersede and replace California election law, including the VCA,

26 by imposing an entirely new system without the many qualifications required by the

27 California Legislature before a county can opt in to all-mail balloting.

28

8 Complaint for Declaratory and Injunctive Relief

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1

44. The non-VCA counties mandated under EO N-64-20 to adopt all-mail

2 elections will do so without the extensive qualifications and protections required by the

3 legislature under the VCA. CAL. ELEC. CODE § 4005(a)(1)-(10). Moreover, it deprives

4 counties and county election officials of their choice under the VCA about whether to

5 adopt all-mail voting systems.

6

45. For example, the voting systems in which Plaintiffs Issa, Oerding, and

7 Sienkiewicz will vote on November 3, 2020 will lack the extensive qualifications that

8 the California Legislature determined counties must satisfy before adopting the VCA

9 system.7

10

46. Congressional districts which cover both VCA and non-VCA counties

11 will elect their congressional representatives using two drastically different election

12 systems during the same election, one lawfully enacted system, the other ultra vires. 13 This is the case for the 3rd Congressional District, where Dr. Oerding votes.

14

47. The new procedures in EO N-64-20 are ultra vires and will lead to

15 controversies over the validity and legitimacy of the outcomes of the pending federal

16 elections, or of any elections held pursuant to those procedures.

17

48. There is a substantial likelihood that EO N-64-20 will lead to post-election

18 intervention by federal courts under the Ninth Circuit’s “fundamental unfairness”

19 doctrine. Bennett v. Yoshina, 140 F.3d 1218, 1226 (9th Cir. 1998)(applying Griffin v.

20 Burns, 570 F.2d 1065 (1st Cir. 1978)).

21

49. Plaintiffs who vote lawfully under the pre-existing California law,

22 assuming they can following EO N-64-20, risk their votes being diluted by unlawful

23 votes casts under the ultra vires system mandated by EO N-64-20.

24

25

26
7 Upon information and belief, VCA counties will still conduct their 27 elections according to the VCA. It is unclear whether EO N-64-20 suspends or
supersedes the VCA in counties that previously adopted and implemented it.
28 9 Complaint for Declaratory and Injunctive Relief

Case 2:20-cv-01044-MCE-CKD Document 1 Filed 05/21/20 Page 10 of 14

1

50. Alternatively, Plaintiffs who vote under the unlawful ultra vires system

2 mandated by EO N-64-20 risk being disenfranchised because their votes will be set

3 aside.

4

51. Many federal elections in California on November 3, 2020 are at risk of

5 post-election challenges and lawsuits. EO N-64-20 creates a significant risk that votes

6 by large portions of the electorate will be set aside once a court determines, as it must,

7 that EO N-64-20 is ultra vires under state and federal law.

8

52. For example, votes cast in the 50th Congressional District according to EO

9 N-64-20 will be open to challenge as a result of Governor Newsom’s ultra vires acts,

10 risking that a court might invalidate the outcome.

11

53. Additionally, Mr. Issa has already had to reevaluate his electoral strategy

12 in order to campaign in the 50th Congressional District as a result of EO N-64-20.

13 Previously, he registered to run for office based under the electoral system established

14 by the California Legislature. Now, he must develop a new strategy to reflect that he

15 is no longer running under an electoral system established under California law, but

16 under the ultra vires system set forth in EO N-64-20.

17

54. As a direct result of EO N-64-20, the costs for running for the 50th

18 Congressional District have increased.

19

55. EO N-64-20 does nothing to resolve the monumental problems that

20 occurred in Los Angeles County during the March 3, 2020 federal primary. Plaintiffs

21 Griffin and Bolotin intend to vote in the November 2020 federal election and there is a

22 real risk that EO N-64-20 will exacerbate, not alleviate, the significant problems

23 revealed during that primary.

24

56. Plaintiffs are not required to wait for the outcome of an election pursuant

25 to ultra vires election procedures before seeking court relief. Moreover, if the injuries

26 to EO N-64-20 are not cured prior to the November election, appropriate post-election

27 relief may not be available to Plaintiffs.

28 10 Complaint for Declaratory and Injunctive Relief

Case 2:20-cv-01044-MCE-CKD Document 1 Filed 05/21/20 Page 11 of 14

1

57. Under the Elections Clause, only the State of California, “by the

2 Legislature thereof,” is authorized to change the time, place, and manner in which

3 Californians will choose their senators and representatives. U.S. CONST. art. I, § 4.

4

58. Under the Electors Clause, the State of California shall appoint

5 presidential electors “in such Manner as the Legislature thereof may direct.” U.S.

6 CONST. art. II, § 1.

7

59. The California Legislature never delegated to Defendants its authority

8 under the Elections Clause or Electors Clause to regulate the manner of conducting

9 elections for senators, representatives, or presidential electors.

10

60. To the extent the California Legislature delegated its authority under the

11 Elections Clause or Electors Clause to regulate the time, place, or manner of conducting

12 elections for senators, representatives, or presidential electors, it was delegated to the

13 counties and county election officials, not Defendants, under the VCA’s permissive

14 opt-in regime.

15

61. As a result of EO N-64-20, 43 of 58 counties are now being forced to

16 implement all-mail ballot elections by Defendants, despite the fact that they have not

17 implemented the qualifications set forth by the California Legislature under the VCA

18 or made the affirmative choice to opt in.

19

20

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

21

62. Plaintiffs reallege all preceding paragraphs as if fully set forth herein.

22

63. EO N-64-20 changes the time, place, and manner in which Californians

23 will choose their senators and congressmen during the November 3, 2020 federal

24 elections.

25

64. Neither Defendant is a “Legislature” under the Elections Clause.

26

65. Defendants have acted and, unless enjoined, will act under color of state

27 law to violate the Elections Clause.

28

11 Complaint for Declaratory and Injunctive Relief

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1

66. Plaintiffs have no adequate remedy at law and will suffer serious and

2 irreparable harm to their constitutional rights unless Defendants are enjoined from

3 implementing and enforcing EO N-64-20.

4

5

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

6

67. Plaintiffs reallege all preceding paragraphs as if fully set forth herein.

7

68. EO N-64-20 changes the manner in which Californians will appoint

8 electors during November 3, 2020 presidential election. U.S. CONST. art. II, § 1.

9

69. Neither Defendant is a “Legislature” under the Electors Clause.

10

70. Defendants have acted and, unless enjoined, will act under color of state

11 law to violate the Electors Clause.

12

71. Plaintiffs have no adequate remedy at law and will suffer serious and

13 irreparable harm to their constitutional rights unless Defendants are enjoined from

14 implementing and enforcing EO N-64-20.

15

16

COUNT III

17

(Violation of the Due Process Clause under the 14th Amendment and 42 U.S.C. § 1983)

18

72. Plaintiffs reallege all preceding paragraphs as if fully set forth herein.

19

73. The Due Process Clause of the United States Constitution prohibits the

20 states from depriving “any person of . . . liberty . . . without due process of law.” U.S.

21 Const. amend. XIV, § 1.

22

74. An election is a denial of substantive due process if it is conducted in a

23 manner that is fundamentally unfair.

24

75. EO N-64-20 deprives Plaintiffs of their due process rights related to the

25 November 3, 2020 election.

26

27

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1

COUNT IV

2

(Ultra Vires Under State Law)

3

76. Plaintiffs reallege all preceding paragraphs as if fully set forth herein.

4

77. Defendants’ authority to compel all-mail ballot elections is limited by, and

5 cannot go beyond, State law.

6

78. Defendants do not have the authority to compel all-mail ballot elections

7 under either federal or state law.

8

79. EO N-64-20 does not “suspend any regulatory statute, or statute

9 prescribing the procedure for conduct of state business, or the orders, rules, or

10 regulations of any state agency[.]” CAL. GOV’T CODE § 8571.

11

80. The VCA is not a “regulatory statute, or statute prescribing the procedure

12 for conduct of state business, or the orders, rules, or regulations of any state agency[.]”

13 Id.

14

81. As a result of EO N-64-20, Plaintiffs have suffered or will suffer injuries.

15

82. Plaintiffs have no adequate remedy at law.

16

17

PRAYER FOR RELIEF

18

WHEREFORE, Plaintiffs asks this Court to enter a judgement in their favor and

19 provide the following relief:

20

a. A declaratory judgment declaring that Executive Order N-64-20 violates

21

the Elections Clause, U.S. CONST. art. I, § 4;

22

b. A declaratory judgment declaring that Executive Order N-64-20 violates

23

the Electors Clause, U.S. CONST. art. II, § 1;

24

c. A declaratory judgment declaring that Executive Order N-64-20 violates

25

the Due Process Clause, U.S. CONST. Amend. XIV;

26

d. A declaratory judgment declaring that Executive Order N-64-20 is ultra

27

vires under state law;

28 13 Complaint for Declaratory and Injunctive Relief

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