New Order Also Gives Guidance on Three Upcoming Special Elections

Some guidelines on elections in California during the COVID-19 pandemic were included in a recent Executive Order from Gov. Gavin Newsom. The Order, N-48-20, issued April 9, clarifies an earlier Order that suspended the legal deadlines to conduct required hearings when an agency switches from an at-large to a district-based method of election under the California Voting Rights Act until both state and local public health officials lift social-distancing measures.

The new Order clarifies that “suspension” does not mean the timeframes entirely restart once social-distancing measures are lifted. Rather, the Order only tolls those deadlines that have not yet occurred as of March 20 — when the original Order was issued — but any deadlines that had already elapsed before the suspension are not tolled.

So, for example, if an agency has already held its first CVRA public hearing in accordance with established deadlines by March 20, the second and future required public hearings need not occur until the social-distancing measures are lifted. However, once they are lifted, the agency would immediately proceed to the second public hearing and continue as required by the CVRA. This Order would not require or authorize the agency to conduct the first public hearing over again.

The new Order also clarifies that a prospective plaintiff who sent written notice of a potential CVRA violation may still obtain reimbursement from the agency under the CVRA for costs incurred in preparing work product to support the notice.

In addition, the Order said that upcoming May and June special elections scheduled for the City of Santa Ana, City of Commerce and the El Rancho Unified School District be conducted as all-mail ballot elections to maintain social distancing during the COVID-19 outbreak.

Each county’s elections official responsible for these elections must transmit vote-by-mail ballots to all eligible voters. Elections officials may also, but are not required to, offer in-person voting opportunities to maximize voter participation “in a manner consistent with public health and safety.” The Order does not provide specific guidance as to how in-person voting is to be conducted. Therefore, elections officials would have broad discretion on how to conduct the in-person voting, if they conduct it at all. This may entail, for example, asking in-person voters to stand at least 6-apart to maintain social distancing.

The Order also requires elections officials to provide “maximum possible notice” to voters about how to participate in these three upcoming local elections. In giving such notice, officials are to pay particular attention to the needs of voters at high risk from COVID-19, individuals with disabilities and other voters with particular needs.

The Order only addresses these three special elections and does not provide guidance as to how later elections are to be conducted (including the Nov. 3 Statewide General Election). Further guidance is expected to come from the Governor’s Office.

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