Former Rep. Darrell Issa (R-CA) and Judicial Watch sued California Gov. Gavin Newsom on Thursday over his May 8 executive order allowing all voters in the state to vote by mail — whether they had formally requested to do so, or not.

Newsom’s order cites the threat of coronavirus: because “it is unknown to what degree COVID-19 will pose a threat to public health in November,” mail-in ballots must be sent to everyone — but in-person voting must also be provided.

Judicial Watch filed a lawsuit on behalf of Issa, who is running for Congress again in the 50th district (as opposed to his former district, the 49th, which has become more liberal). Three voters — one Democrat, one Republican and one independent — are also named plaintiffs in the suit, which was filed in federal court in Sacramento. The defendants include both Newsom and Secretary of State Alex Padilla, who is responsible for administering elections in the state.

The lawsuit lays out a simple case: the U.S. Constitution provides explicitly that the state legislatures control the manner of electing members of Congress, as well as members of the Electoral College (who elect the president).

The filing states (emphasis added):

The United States Constitution sets forth the authority to regulate federal elections. With respect to congressional elections, the Constitution provides:

The Times, Places and Manner of holding Elections for Senators and Representatives, shall be prescribed in each State by the Legislature thereof; but the Congress may at any time by Law make or alter such Regulations, except as to the Places of chusing Senators.

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

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

Each State shall appoint, in such Manner as the Legislature thereof may direct, a Number of Electors, equal to the whole Number of Senators and Representatives to which the State may be entitled in the Congress: but no Senator or Representative, or Person holding an Office of Trust or Profit under the United States, shall be appointed an Elector.

U.S. CONST. art. II, § 1 (“Electors Clause”).
17. Neither Defendant is a “Legislature” as required under the Elections Clause or Electors Clause.

Moreover, the lawsuit argues, California’s Voter’s Choice Act of 2016 provides that county governments control the decision about whether to participate in an all-mail system of voting. And while the governor has emergency powers to override statutes, the governor is required to end the state of emergency as soon as possible. There is a risk of legal challenges after the election, hurting voters and candidates — especially in congressional districts that include more than one county, where some votes might have been cast legally and others under the new, allegedly unlawful system.

In a statement, Judicial Watch president Tom Fitton said: “California law prohibits blindly mailing out ballots to every registered voter in the state. This scheme raises the risk of Election Day chaos as well as voter fraud.”

Judicial Watch won an important victory in 2018 when it reached a settlement with the state and with Los Angeles County to remove more than 1.5 million inactive voters from the tolls. It has also warned 11 other counties of similar problems.

Joel B. Pollak is Senior Editor-at-Large at Breitbart News and the host of Breitbart News Sunday on Sirius XM Patriot on Sunday evenings from 7 p.m. to 10 p.m. ET (4 p.m. to 7 p.m. PT). His new book, RED NOVEMBER, is available for pre-order. He is a winner of the 2018 Robert Novak Journalism Alumni Fellowship. Follow him on Twitter at @joelpollak.