PERKINS COIE LLP · JERRY GRIFFIN, MICHELLE BOLOTIN, and MICHAEL SIENKIEWICZ, v. GAVIN NEWSOM, in his official capacity as ... MAY 0 4 1992 Case 2:20-cv-01044-MCE-CKD Document 58-2

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MARC E. ELIAS, ESQ. (D.C. Bar No. 442007)*

HENRY J. BREWSTER, ESQ. (D.C. Bar No. 1033410)*

COURTNEY A. ELGART, ESQ. (D.C. Bar No. 1645065)*

PERKINS COIE LLP

700 Thirteenth Street NW, Suite 800

Washington, D.C. 20005-3960

Tel: (202) 654-6200

[email protected]

[email protected]

[email protected]

ABHA KHANNA, ESQ. (Wash. Bar No. 42612)*

JONATHAN P. HAWLEY, ESQ. (SBN 319464)

PERKINS COIE LLP

1201 Third Avenue, Suite 4900

Seattle, Washington 98101-3099

Tel: (206) 359-8000

[email protected]

[email protected]

Attorneys for Intervenor-Defendants DCCC and

California Democratic Party

*Admitted pro hac vice

UNITED STATES DISTRICT COURT

EASTERN DISTRICT OF CALIFORNIA

DARRELL ISSA, JAMES B. OERDING,

JERRY GRIFFIN, MICHELLE BOLOTIN,

and MICHAEL SIENKIEWICZ,

Plaintiffs,

v.

GAVIN NEWSOM, in his official capacity as

Governor of the State of California, and ALEX

PADILLA, in his official capacity as Secretary

of State of California,

Defendants,

and

Case No.: 2:20-cv-01044-MCE-CKD INTERVENOR-DEFENDANTS’

CONSOLIDATED OPPOSITION TO

PLAINTIFFS’ MOTIONS FOR

PRELIMINARY INJUNCTION

Case 2:20-cv-01044-MCE-CKD Document 58 Filed 06/25/20 Page 1 of 30

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OPPOSITION TO MOTIONS FOR PRELIMINARY INJUNCTION

DCCC and CALIFORNIA DEMOCRATIC

PARTY,

Intervenor-

Defendants.


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TABLE OF CONTENTS

Page

OPPOSITION TO MOTIONS FOR PRELIMINARY INJUNCTION—PAGE i

INTRODUCTION ......................................................................................................................... 1

BACKGROUND ........................................................................................................................... 2

LEGAL STANDARD .................................................................................................................... 3

ARGUMENT ................................................................................................................................. 4

I. Plaintiffs have not demonstrated a likelihood of success on the merits. ............... 4

A. Plaintiffs’ claims are moot. ........................................................................ 4

B. Plaintiffs’ claims are barred by the Eleventh Amendment. ....................... 5

C. Plaintiffs cannot prevail on their claims under the Elections or

Electors Clause because Defendants’ plans for the November

Election are consistent with California law. .............................................. 7

II. Plaintiffs will suffer no injury absent an injunction............................................. 13

III. The balance of harms weighs strongly in favor of Defendants. .......................... 17

IV. The public interest would not be served by an injunction. .................................. 19

CONCLUSION ............................................................................................................................ 20


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TABLE OF AUTHORITIES

Pages

OPPOSITION TO MOTIONS FOR PRELIMINARY INJUNCTION—PAGE ii

CASES

Actmedia, Inc. v. Stroh,

830 F.2d 957 (9th Cir. 1986), overruled on other grounds by Sorrell v. IMS

Health Inc., 564 U.S. 552 (2011) ...............................................................................................6

All. for Wild Rockies v. Cottrell,

632 F.3d 1127 (9th Cir. 2011) .................................................................................................14

Am. Civil Rights Union v. Martinez-Rivera,

166 F. Supp. 3d 779 (W.D. Tex. 2015)....................................................................................16

ARC of Cal. v. Douglas,

No. 2:11-cv-02545-MCE-CKD, 2018 WL 1535511 (E.D. Cal. Mar. 29, 2018) .......................6

Ariz. State Legislature v. Ariz. Indep. Redistricting Comm’n,

135 S. Ct. 2652 (2015) .....................................................................................................7, 8, 10

Cal. Corr. Peace Officers’ Ass’n v. Schwarzenegger,

163 Cal. App. 4th 802 (2008) ..................................................................................................11

Cardona v. Oakland Unified Sch. Dist.,

785 F. Supp. 837 (N.D. Cal. 1992) ..........................................................................................18

Carmel Valley Fire Prot. Dist. v. State,

25 Cal. 4th 287 (2001) .............................................................................................................13

City of Morgan Hill v. Bay Area Air Quality Mgmt. Dist.,

118 Cal. App. 4th 861 (2004) ....................................................................................................9

Common Cause/Ga. v. Billups,

439 F. Supp. 2d 1294 (N.D. Ga. 2006) ....................................................................................19

Cook v. Gralike,

531 U.S. 510 (2001) ...................................................................................................................7

Democratic Nat’l Comm. v. Hobbs,

948 F.3d 989, 1036 (9th Cir. 2020) (en banc) .........................................................................16

Evans v. Beck,

No. 1:12-cv-00284-AWI-MJS (PC), 2012 WL 3133479 (E.D. Cal. July 31,

2012) ..........................................................................................................................................4

Fla. Democratic Party v. Scott,

215 F. Supp. 3d 1250 (N.D. Fla. 2016)....................................................................................19

Gerawan Farming, Inc. v. Agric. Labor Relations Bd.,

3 Cal. 5th 1118 (2017) .............................................................................................................10


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OPPOSITION TO MOTIONS FOR PRELIMINARY INJUNCTION—PAGE iii

Hendricks v. Hanigan,

No. D037609, 2002 WL 397648 (Cal. Ct. App. Mar. 14, 2002) ...............................................9

Issa v. Newsom,

No. 2:20-cv-01044-MCE-CKD (E.D. Cal.) ..................................................................... passim

League of Wilderness Defs./Blue Mountains Biodiversity Project v. Connaughton,

752 F.3d 755 (9th Cir. 2014) ...................................................................................................19

League of Women Voters of Cal. v. McPherson,

145 Cal. App. 4th 1469 (2006) ................................................................................................13

League of Women Voters of N.C. v. North Carolina,

769 F.3d 224 (4th Cir. 2014) ...................................................................................................19

Libertarian Party v. Eu,

28 Cal. 3d 535 (1980) ..............................................................................................................10

Macias v. State,

10 Cal. 4th 844 (1995) .........................................................................................................9, 12

Martin v. Mun. Court,

148 Cal. App. 3d 693 (1983) ...............................................................................................8, 11

Massey v. Coon,

No. 87-3768, 1989 WL 884 (9th Cir. Jan. 3, 1989) ...................................................................7

Metabolife Int’l, Inc. v. Wornick,

264 F.3d 832 (9th Cir. 2001) ...................................................................................................15

Obama for Am. v. Husted,

697 F.3d 423 (6th Cir. 2012) ...................................................................................................18

One Wis. Inst., Inc. v. Thomsen,

198 F. Supp. 3d 896 (W.D. Wis. 2016) .............................................................................16, 19

Paher v. Cegavske,

No. 3:20-cv-00243-MMD-WGC, 2020 WL 2089813 (D. Nev. Apr. 30, 2020) ...............16, 20

Pennhurst State Sch. & Hosp. v. Halderman,

465 U.S. 89 (1984) .....................................................................................................................6

People First of Ala. v. Sec’y of State,

No. 20-12184 (11th Cir. June 25, 2020) ............................................................................16, 18

Purcell v. Gonzalez,

549 U.S. 1 (2006) .....................................................................................................................14

R.F. ex rel. Frankel v. Delano Union Sch. Dist.,

No. 1:16-cv-01796-LJO-JLT, 2017 WL 633919 (E.D. Cal. Feb. 15, 2017) .........................4, 5


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OPPOSITION TO MOTIONS FOR PRELIMINARY INJUNCTION—PAGE iv

Republican Nat’l Comm. v. Democratic Nat’l Comm.,

140 S. Ct. 1205 (2020) .............................................................................................................14

Republican Nat’l Comm. v. Newsom,

No. 2:20-cv-01055-MCE-CKD (E.D. Cal.) ...............................................................................3

Sanchez v. Cegavske,

214 F. Supp. 3d 961 (D. Nev. 2016) ........................................................................................18

Serv. Emps. Int’l Union, Local 1 v. Husted,

906 F. Supp. 2d 745 (S.D. Ohio 2012) ....................................................................................18

Sierra Forest Legacy v. Rey,

691 F. Supp. 2d 1204 (E.D. Cal. 2010)................................................................................3, 20

Six v. Newsom,

No. 8:20-cv-00877-JLS-DFM, 2020 WL 2896543 (C.D. Cal. May 22, 2020) .....................6, 7

Thompson v. Alabama,

No. 2:16-CV-783-WKW, 2017 WL 3223915 (M.D. Ala. July 28, 2017) .................................7

Vasquez v. Rackauckas,

734 F.3d 1025 (9th Cir. 2013) ...................................................................................................6

Wash. Ass’n of Churches v. Reed,

492 F. Supp. 2d 1264 (W.D. Wash. 2006) ...............................................................................19

Wash. State Grange v. Wash. State Republican Party,

552 U.S. 442 (2008) .................................................................................................................10

Weinberger v. Romero-Barcelo,

456 U.S. 305 (1982) ...................................................................................................................1

Winter v. Nat. Res. Def. Council, Inc.,

555 U.S. 7 (2008) .................................................................................................................3, 14

STATUTES

Cal. Elec. Code § 3000.5 .................................................................................................................5

Cal. Elec. Code § 3010 ....................................................................................................................5

Cal. Elec. Code § 3011 ..................................................................................................................20

Cal. Elec. Code § 3019 ..................................................................................................................20

Cal. Elec. Code §§ 4005–4007 .............................................................................................. passim

Cal. Elec. Code § 18568 ................................................................................................................20


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OPPOSITION TO MOTIONS FOR PRELIMINARY INJUNCTION—PAGE v

Cal. Elec. Code § 18573 ................................................................................................................20

Cal. Elec. Code § 18578 ................................................................................................................20

Cal. Gov’t Code § 8550 ...................................................................................................................8

Cal. Gov’t Code §§ 8550–8669 ............................................................................................. passim

Cal Gov’t Code § 8558 ..................................................................................................................11

Cal. Gov’t Code § 8567 .................................................................................................................12

Cal. Gov’t Code § 8571 .............................................................................................................9, 10

Cal. Gov’t Code § 8625 .................................................................................................................11

Cal Gov’t Code § 8627 ..................................................................................................................10

Cal Gov’t Code § 8629 ..................................................................................................................12

National Voter Registration Act of 1993 .......................................................................................16

OTHER AUTHORITIES

Adam Beam, California Senate OKs Bill to Mail Ballots for Fall Election, AP

(June 11, 2020), https://apnews.com/8a198bbe7294befdc01fd6e67930bc65 .........................14

Eleventh Amendment............................................................................................................. passim

Fifth Amendment .............................................................................................................................7

Fourteenth Amendment ...................................................................................................................7

Amy Gardner et al., Primary Voters in 8 States and D.C. Faced Some Confusion,

Long Lines and Poor Social Distancing, Wash. Post (June 2, 2020), https://

www.washingtonpost.com/politics/in-pennsylvania-officials-prepare-for-

coronavirus-civil-unrest-to-disrupt-tuesday-primary/2020/06/02/96a55c40-

a4be-11ea-b619-3f9133bbb482_story.html .............................................................................18

Assembly Bill No. 860, Cal. Legis. Info. (June 18, 2020), https://

leginfo.legislature.ca.gov/faces/billTextClient.xhtml?bill_id=201920200AB860 ................3, 5

Brian Naylor, As More Americans Prepare to Vote by Mail, Postal Service Faces

Big Challenges, NPR (May 30, 2020), https://www.npr.org/2020/05/30/

865258362/as-more-americans-prepare-to-vote-by-mail-postal-service-faces-

big-challenges ..........................................................................................................................12

Cal. Const. art. II, § 4 .....................................................................................................................13

Cal. Const. art. III, § 3 ...................................................................................................................13


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OPPOSITION TO MOTIONS FOR PRELIMINARY INJUNCTION—PAGE vi

COVID-19, Cal. Dep’t of Pub. Health, https://www.cdph.ca.gov/Programs/CID/

DCDC/Pages/Immunization/ncov2019.aspx (last visited June 25, 2020) .................................2

Elise Viebeck, Minuscule Number of Potentially Fraudulent Ballots in States with

Universal Mail Voting Undercuts Trump Claims About Election Risks, Wash.

Post (June 8, 2020), https://www.washingtonpost.com/politics/minuscule-

number-of-potentially-fraudulent-ballots-in-states-with-universal-mail-voting-

undercuts-trump-claims-about-election-risks/2020/06/08/1e78aa26-a5c5-

11ea-bb20-ebf0921f3bbd_story.html .......................................................................................15

Fed. Judicial Ctr., Reference Manual on Scientific Evidence (3d ed. 2011) ..................................15

Jim Malewitz, Their Wisconsin Ballots Never Arrived. So They Risked a Pandemic.

Or Stayed Home., Wis. Watch (Apr. 7, 2020), https://

www.wisconsinwatch.org/2020/04/ballots-never-arrived-pandemic-or-stay-home ................18

Op. No. SO 77-11, 60 Cal. Op. Att’y Gen. 99 (1977) ...................................................................10

Matt Kristoffersen, Gavin Newsom Signs Law Ordering Mail-in Ballots for

November Election, Sacramento Bee (June 18, 2020), https:/

/www.sacbee.com/news/politics-government/capitol-alert/article243636972.html ..................3

Scott Shafer, Trump Sees Voter Fraud, but Election Chiefs in Red Counties Do

Not, KQED (June 18, 2020), https://www.kqed.org/news/11824704/trump-

sees-voter-fraud-but-election-chiefs-in-red-counties-do-not ...................................................20

U.S. Const. art. I, § 4, cl. 1 ..................................................................................................... passim

U.S. Const. art. II, § 1, cl. 2 ................................................................................................... passim


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OPPOSITION TO MOTIONS FOR PRELIMINARY INJUNCTION— PAGE 1

INTRODUCTION

In a time of crisis and unrest, ensuring that every individual has a meaningful opportunity

to cast a ballot is of paramount importance. The State of California, recognizing both this

imperative and the dangers posed by an extraordinary global pandemic, has taken the responsible

course of action: implementing plans for the November general election to allow all eligible

Californians to vote safely by mail. In response, two sets of plaintiffs, both backed by conservative

interests, have moved to thwart this reasonable, necessary action. Their complaints and motions

for preliminary injunction suggest that COVID-19 is now but a rare disease, and that an epidemic

of voter fraud is sweeping across America. But Plaintiffs have it exactly backwards—the risks

imposed by the novel coronavirus continue and will likely spike again in the fall, while no evidence

supports their allegations of widespread electoral malfeasance. Plaintiffs are litigating against

reality.

Plaintiffs’ claims are not only wrong on the facts; they are wrong on the law. At bottom,

they ask this Court to find that Defendants’ election plans contravene the authority and intent of

the California Legislature. But subsequent to the filing of Plaintiffs’ motions, the California

Legislature enacted legislation mirroring and ratifying the challenged plans, thus precluding any

argument that Defendants have not followed the Legislature’s dictates and consequently mooting

Plaintiffs’ claims. Rather than withdrawing their motions, Plaintiffs have chosen to press on. But

even if their claims were not moot, they still could not succeed; the Eleventh Amendment prevents

the relief Plaintiffs seek because a federal court cannot order state officials to conform to state law,

and Plaintiffs’ central contention—that Defendants violated California law—is plain wrong.

Even if the question of whether Defendants followed California law were properly before

the Court, an injunction would still be inappropriate. “[A]n injunction is an equitable remedy,”

and, as such, it must be deployed to achieve equitable ends. Weinberger v. Romero-Barcelo, 456

U.S. 305, 311 (1982). Plaintiffs have not, and could not, prove that Defendants’ efforts to make

voting easier for Californians in any way prevents Plaintiffs from voting, or causes any cognizable

injury. The evidence they have marshaled does not demonstrate widespread voter fraud, or a threat

to electoral integrity in California, or any risk that would justify the extraordinary remedy of a


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OPPOSITION TO MOTIONS FOR PRELIMINARY INJUNCTION—PAGE 2

preliminary injunction. By striking contrast, Plaintiffs’ requested relief will result in widescale

disruption ahead of the November election, and will cause many voters to suffer

disenfranchisement. Balanced against each other, the equitable considerations independently

counsel against the requested relief.

Equipped only with speculation, a hodgepodge of news articles, and out-of-context

citations, Plaintiffs seek an order from this Court that would serve to disenfranchise California

voters while putting the health and safety of the electorate at risk. Because they have fallen far

short of the considerable showing required for the extraordinary relief they seek, their motions for

preliminary injunction should be denied.1

BACKGROUND

As of June 23, 2020, nearly 200,000 people in California have tested positive for the novel

coronavirus, and more than 5,500 have died from COVID-19. See COVID-19, Cal. Dep’t of Pub.

Health, https://www.cdph.ca.gov/Programs/CID/DCDC/Pages/Immunization/ncov2019.aspx

(last visited June 25, 2020). The pandemic has upended life in California, leading Defendant Gavin

Newsom, the Governor of California (the “Governor”), to declare a state of emergency on March

4, 2020. See Motion for Preliminary Injunction (“Issa Mot.”), Ex. 5, Issa v. Newsom, No. 2:20-cv-

01044-MCE-CKD (E.D. Cal.), ECF No. 38.

In response to this unprecedented public health crisis, the Governor exercised his authority

to ensure that every voter has an opportunity to vote in the November 3, 2020 general election (the

“November Election”). Specifically, he issued two executive orders, Executive Order (“EO”) N-

64-20 and EO N-67-20, which, among other things, require all county election officials to

proactively send mail ballots to registered voters. See id., Exs. 2, 6.

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

Michael Sienkiewicz (the “Issa Plaintiffs”), and Plaintiffs Republican National Committee,

National Republican Congressional Committee, and California Republican Party (the “RNC

1 Given the significant factual and legal overlap between the two pending motions, Intervenor-

Defendants have consolidated their oppositions into this single brief.


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Plaintiffs,” and together with the Issa Plaintiffs, “Plaintiffs”) each filed suit, and subsequently filed

these motions for injunctive relief, asking the Court to invalidate EO N-64-20 and thus upend

Defendants’ plans for the November Election. See Issa, ECF No. 1; Republican Nat’l Comm. v.

Newsom (“RNC”), No. 2:20-cv-01055-MCE-CKD (E.D. Cal.), ECF No. 1.; Issa Mot.; Motion for

Preliminary Injunction (“RNC Mot.), RNC, ECF No. 24.

On June 18, 2020, the California Legislature overwhelmingly passed—and the Governor

signed into law—Assembly Bill (“AB”) 860, which ratified Defendants’ decision “requir[ing]

county elections officials to mail a ballot to every registered voter for the November 3, 2020,

statewide general election.” Assembly Bill No. 860, Cal. Legis. Info. (June 18, 2020), https://

leginfo.legislature.ca.gov/faces/billTextClient.xhtml?bill_id=201920200AB860; see also Matt

Kristoffersen, Gavin Newsom Signs Law Ordering Mail-in Ballots for November Election,

Sacramento Bee (June 18, 2020), https://www.sacbee.com/news/politics-government/capitol-

alert/article243636972.html (noting that “[t]he bill almost mirrors the election-related executive

orders that Newsom issued since the coronavirus outbreak, which guarantee that registered voters

receive ballots ahead of the election”).

LEGAL STANDARD

“A preliminary injunction is an extraordinary remedy never awarded as of right.” Winter

v. Nat. Res. Def. Council, Inc., 555 U.S. 7, 24 (2008); accord Sierra Forest Legacy v. Rey, 691 F.

Supp. 2d 1204, 1207 (E.D. Cal. 2010) (“Because it ‘is an extraordinary and drastic remedy,’ an

injunction ‘should not be granted unless the movant, by a clear showing, carries the burden of

persuasion.’” (citation omitted) (quoting Munaf v. Geren, 553 U.S. 674, 689 (2008), and Mazurek

v. Armstrong, 520 U.S. 968, 972 (1997))).

The party requesting an injunction must demonstrate (1) a likelihood of success on the

merits, (2) a likelihood of irreparable harm absent injunctive relief, (3) that the balance of equities

tips in the party’s favor, and (4) that “an injunction is in the public interest.” Winter, 555 U.S. at

20. “If a plaintiff fails to meet its burden on any of the four requirements for injunctive relief, its

request must be denied.” Sierra Forest Legacy, 691 F. Supp. 2d at 1207. A party moving for a

preliminary injunction cannot establish a likelihood of success on the merits if its claims are moot,


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see R.F. ex rel. Frankel v. Delano Union Sch. Dist., No. 1:16-cv-01796-LJO-JLT, 2017 WL

633919, at *1 (E.D. Cal. Feb. 15, 2017), or if it has failed to state a claim upon which relief can be

granted, see Evans v. Beck, No. 1:12-cv-00284-AWI-MJS (PC), 2012 WL 3133479, at *2 (E.D.

Cal. July 31, 2012).

ARGUMENT

I. Plaintiffs have not demonstrated a likelihood of success on the merits.

Plaintiffs contend that “EO N-64-20 violates the Elections Clause and the Electors Clause

because it was not enacted pursuant to California’s lawmaking power or some unique lawmaking

function that is prescribed under the California constitution.” Issa Mot. at 10; see also RNC Mot.

at 10.2 The Legislature’s passage of AB 860 has mooted these claims. Even if it did not, these

claims are barred by the Eleventh Amendment, and Defendants’ actions were ultimately consistent

with California law. Plaintiffs therefore cannot succeed on the merits of their claims.

A. Plaintiffs’ claims are moot.

While the lynchpin of Plaintiffs’ claims is an assertion that EO N-64-20 violates California

law, California law has since changed. As a result, the claims upon which Plaintiffs’ motions for

preliminary injunction are based are now moot.

“‘[A] case is moot when the issues presented are no longer “live” or the parties lack a

legally cognizable interest in the outcome.’ . . . [I]f ‘changes in the circumstances that prevailed at

the beginning of litigation have forestalled any occasion for meaningful relief,’ then the case is

moot.” Frankel, 2017 WL 633919, at *6 (first alteration in original) (quoting Powell v.

McCormack, 395 U.S. 486, 496 (1969), and West v. Sec’y of Dep’t of Transp., 206 F.3d 920, 925

n.4 (9th Cir. 2000)).

Plaintiffs’ causes of action rely wholly and unequivocally on the contention that

Defendants’ decision to proactively mail ballots to voters, rather than requiring use of the absentee

2 The RNC Plaintiffs state that they “are seeking a preliminary injunction based only on their

claims under the Elections and Electors Clauses.” RNC Mot. at 10 n.3. Although the Issa Plaintiffs

do not provide a similarly explicit assertion, their motion also addresses only their claims under

the Elections and Electors Clauses. See Issa Mot. at 10–14.


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ballot procedure, is inconsistent with and in violation of California law—in particular, the Voter’s

Choice Act (the “VCA”), Cal. Elec. Code §§ 4005–4007. The Legislature, however, recently

passed AB 860, which amended the Elections Code to ratify EO N-64-20’s plan to proactively

mail ballots to voters. See Assembly Bill No. 860, supra (adding section 3000.5 to Elections Code,

requiring that “for the statewide general election to be held on November 3, 2020, the county

elections official shall, no later than 29 days before the day of the election, begin mailing the

materials specified in Section 3010 to every registered voter in the county”). As discussed further

in Part I.C supra, Plaintiffs’ claims under the Elections and Electors Clauses of the U.S.

Constitution—the only claims for which they seek preliminary injunctions—require a showing

that Defendants acted in contravention of the Legislature and thus violated state law. The passage

of AB 860, which grants the Legislature’s imprimatur to the very plans Plaintiffs challenge,

renders these claims moot. Plaintiffs therefore cannot succeed on the merits. See Frankel, 2017

WL 633919, at *1 (denying motion for preliminary injunction where “Plaintiff cannot show

likelihood of success on the merits because his claim is moot”).

B. Plaintiffs’ claims are barred by the Eleventh Amendment.

Even if the Legislature had not enacted AB 860, the Eleventh Amendment would bar

Plaintiffs’ claims because a federal court cannot order state officials to conform to state law.

Plaintiffs’ complaints and preliminary injunction motions are replete with references to

what California law requires, what the California Legislature intended, and how EO N-64-20

violates both.3 As the RNC Plaintiffs explain in their motion, the basis for their claims that “[EO]

3 See, e.g., Issa Compl. ¶¶ 43–47 (“The all-mail system ordered by Governor Newsom in EO N-

64-20 is an unlawful attempt to supersede and replace California election law, including the VCA,

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

Legislature before a county can opt in to all-mail balloting.”); id. ¶¶ 59–60 (“The California

Legislature never delegated to Defendants its authority under the Elections Clause or Electors

Clause to regulate the manner of conducting elections for senators, representatives, or presidential

electors.”); Issa Mot. at 10–14 (arguing that the Governor lacks the authority he assumes under

state law); RNC Compl. ¶ 2 (“In a direct usurpation of the legislature’s authority, Governor

Newsom issued an executive order purporting to rewrite the entire election code for the November

2020 election.”); id. ¶¶ 101–20 (“In California, the Governor is not the Legislature and thus cannot


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N-64-20 violates the Elections and Electors Clauses”—the only claims for which Plaintiffs seek

preliminary injunctions—is that “[n]one of the [state] statutes cited by [EO] N-64-20 delegate . . .

to the Governor” “the power to control federal elections.” RNC Mot. at 10; see also Issa Mot. at

10. Accordingly, Plaintiffs urge this Court to (1) adjudicate whether Defendants have violated state

law, and (2) issue a preliminary injunction requiring state officials to comply with state law, by

prohibiting implementation of EO N-64-20. See Issa Compl. at 13–14; RNC Compl. at 26. But as

the U.S. Supreme Court explained decades ago in Pennhurst State School & Hospital v.

Halderman, “the principles of federalism that underlie the Eleventh Amendment” prohibit a

federal court from granting “relief against state officials on the basis of state law, whether

prospective or retroactive.” 465 U.S. 89, 106 (1984). Because Plaintiffs’ claims rest entirely on

their shared misconception that a federal court can order state officials to comply with state law,

they cannot succeed on their claims.

Pennhurst announced a bright line rule that has been applied countless times by federal

courts since. Simply put: “A federal court may not enjoin a state official from violating purely

state law; this is proscribed by the Eleventh Amendment to the United States Constitution.” ARC

of Cal. v. Douglas, No. 2:11-cv-02545-MCE-CKD, 2018 WL 1535511, at *6 (E.D. Cal. Mar. 29,

2018); accord Vasquez v. Rackauckas, 734 F.3d 1025, 1041 (9th Cir. 2013) (“‘A federal court[]’

may not ‘grant’ injunctive ‘relief against state officials on the basis of state law,’ when those

officials are sued in their official capacity.” (alteration in original) (quoting Pennhurst, 465 U.S.

at 106)); Actmedia, Inc. v. Stroh, 830 F.2d 957, 964 (9th Cir. 1986) (noting that Eleventh

Amendment bars “suits based on alleged violations of state law, or designed to compel state

officials ‘to conform their conduct to state law,’ because such suits ‘do [] not vindicate the supreme

authority of federal law,’ and do produce ‘great [] intrusion[s] on state sovereignty’” (alterations

in original) (quoting Pennhurst, 465 U.S. at 106)), overruled on other grounds by Sorrell v. IMS

Health Inc., 564 U.S. 552 (2011); Six v. Newsom, No. 8:20-cv-00877-JLS-DFM, 2020 WL

exercise legislative power.”); RNC Mot. at 1–2 (explaining California election law and

emphasizing what the Legislature “has chosen not to” do).


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2896543, at *8 (C.D. Cal. May 22, 2020) (claims “based on the California Emergency Services

Act” and “violations of the California Constitution” are “barred by the Eleventh Amendment”).

This is true even when the request to order state officials to conform to state law is cloaked in a

federal claim to relief. See, e.g., Massey v. Coon, No. 87-3768, 1989 WL 884, at *2 (9th Cir. Jan.

3, 1989) (affirming dismissal of suit where “on its face the complaint states a claim under the due

process and equal protection clauses of the Constitution, [but] these constitutional claims are

entirely based on the failure of defendants to conform to state law”); Six, 2020 WL 2896543, at *8

(denying temporary restraining order in part because Fifth and Fourteenth Amendment claims

were predicated on violations of state law); Thompson v. Alabama, No. 2:16-CV-783-WKW, 2017

WL 3223915, at *8 (M.D. Ala. July 28, 2017) (denying preliminary injunction where plaintiffs’

federal constitutional claims rested on premise that state officials were violating state law).

Plaintiffs frame their claims under the U.S. Constitution’s Elections Clause, U.S. Const.

art. I, § 4, cl. 1, and Electors Clause, U.S. Const. art. II, § 1, cl. 2. While courts have entertained

claims under these Clauses, those cases typically involved a claim that a state law exceeded the

power delegated to the States by the U.S. Constitution. For example, in Cook v. Gralike, the U.S.

Supreme Court struck down a Missouri law that mandated a ballot designation for any

congressional candidate who refused to commit to term limits. 531 U.S. 510, 525–26 (2001). And

in Arizona State Legislature v. Arizona Independent Redistricting Commission, the Supreme Court

upheld a law that delegated the redistricting process to an independent commission. 135 S. Ct.

2652, 2663 (2015). In both instances, the task of the federal court was to measure a state law

against a federal mandate. Not so here. Instead, Plaintiffs ask this Court to measure Defendants’

executive actions against California law, and issue an injunction requiring state officials to

conform their conduct to state law. The Eleventh Amendment prohibits the Court from engaging

in this task.

C. Plaintiffs cannot prevail on their claims under the Elections or Electors Clause

because Defendants’ plans for the November Election are consistent with

California law.

As Plaintiffs concede, they must prove that the issuance of EO N-64-20 violated California


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law in order to prevail on their claims under the Elections Clause or Electors Clause. See Issa Mot.

at 10 (“EO N-64-20 violates the Elections Clause and the Electors Clause because it was not

enacted pursuant to California’s lawmaking power or some unique lawmaking function that is

prescribed under the California constitution.”); RNC Mot. at 10 (arguing that “[EO] N-64-20

violates the Elections and Electors Clauses” because “[n]one of the statutes cited by [it] delegate

this power [to control federal elections] to the Governor”). Even before passage of AB 860, they

had failed to do so.

Contrary to Plaintiffs’ assertions, the U.S. Supreme Court has held that state legislatures

can delegate their authority to implement the procedural regulations governing elections,

notwithstanding the fact that the Elections and Electors Clauses confer their respective powers to

“the Legislature.” See Ariz. State Legislature, 135 S. Ct. at 2667, 2673 (noting that Elections

Clause does not preclude “the State’s choice to include the Governor” in lawmaking functions so

long as such involvement is “in accordance with the method which the State has prescribed for

legislative enactments” (quoting Smiley v. Holm, 285 U.S. 355, 367 (1932))); see also id. at 2686

(noting that Electors Clause is “a constitutional provision with considerable similarity to the

Elections Clause”). Accordingly, Defendants’ plans for the November Election could only

constitute plausible violations of the Elections and Electors Clauses if the Governor exceeded the

authority granted to him by the California Constitution and state statute. He did not. The

Governor’s actions to address the coronavirus pandemic and expand voting opportunities for

eligible Californians were authorized by California law—specifically, the California Emergency

Services Act (the “Act”), Cal. Gov’t Code §§ 8550–8669, which recognizes that the State has a

“responsibility to mitigate the effects of . . . emergencies” and “protect the health and safety and

preserve the lives and property of the people of the state,” Cal. Gov’t Code § 8550, and thus

“confers broad powers on the Governor to deal with emergencies.” Martin v. Mun. Court, 148 Cal.

App. 3d 693, 696 (1983). Consistent with this broad mandate, EO N-64-20 temporarily suspends

the ability of some California counties to choose whether to “opt in” to the VCA in order to ensure

that the November Election “is held in a manner that is accessible, secure, and safe.” Issa Mot.,

Ex. 2. The Governor’s actions were therefore lawful under the plain text of—and expansive


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authority conferred by—the Act. See Cal. Gov’t Code § 8571 (empowering Governor to “suspend

any regulatory statute, or statute prescribing the procedure for conduct of state business” if

compliance would “delay the mitigation of the effects of the emergency”); Macias v. State, 10 Cal.

4th 844, 854 (1995) (“[T]he Emergency Services Act makes clear that in situations of ‘extreme

peril’ to the public welfare the State may exercise its sovereign authority to the fullest extent

possible consistent with individual rights and liberties.” (quoting Cal. Gov’t Code § 8550)).

In response to this straightforward exercise of powers granted by the Legislature, Plaintiffs

attempt to muddy the waters by imposing novel limitations and requirements on the Governor’s

powers under the Act. Ultimately, none of these arguments is compelling, and certainly none

demonstrates that the Governor exceeded his lawful authority.

First, Plaintiffs incorrectly suggest that the Act does not permit the Governor to suspend

provisions of the VCA or the Elections Code, and instead only gives him the authority to “get rid

of roadblocks” and “cut through red tape.” RNC Mot. at 12–13; see also Issa Mot. at 13–14.

Neither the text of the Act nor the cases cited by Plaintiffs impose such a limitation. The plain

language of the Act empowers the Governor to “suspend any regulatory statute, or statute

prescribing the procedure for conduct of state business.” Cal. Gov’t Code § 8571 (emphasis

added). And while the cases on which Plaintiffs rely addressed the Act in the regulatory context,

none confined the Act’s scope only to those circumstances.4 This is not surprising; any such

limitation would conflict with the broad executive mandate that the Act provides. See, e.g., Macias,

10 Cal. 4th at 856 (“[T]he power to declare and abate a public emergency represents a formidable

undertaking. It is, without a doubt, the single most compelling and absolute exercise of sovereign

authority that the State, acting through its chief executive, may pursue.”).

Second, Plaintiffs argue that the Governor lacks authority under the Act to suspend

4 See City of Morgan Hill v. Bay Area Air Quality Mgmt. Dist., 118 Cal. App. 4th 861, 876 (2004)

(noting that the Act “authorizes the Governor to rescind regulatory statutes and regulations, if this

action is necessary to carry out the provisions of the [A]ct,” but not limiting the Act only to those

circumstances); Hendricks v. Hanigan, No. D037609, 2002 WL 397648, at *10 (Cal. Ct. App.

Mar. 14, 2002) (permitting suspension of competitive bidding requirements during state of

emergency without imposing regulatory limitation on the Act).


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provisions of the Elections Code because they are not “statute[s] prescribing the procedure for

conduct of state business.” Cal. Gov’t Code § 8571. But both the U.S. and California Supreme

Courts have repeatedly emphasized that the conduct of elections—both state and federal—is

quintessential state business. See, e.g., Ariz. State Legislature, 135 S. Ct. at 2673; Wash. State

Grange v. Wash. State Republican Party, 552 U.S. 442, 451 (2008); Libertarian Party v. Eu, 28

Cal. 3d 535, 545 (1980). Moreover, during several prior emergencies, previous Governors issued

executive orders under the Act that temporarily suspended provisions of the Elections Code,

without apparent challenge from courts or the Legislature. See Exs. 2–6 (previous executive orders

affecting elections issued by Governors Pete Wilson, Arnold Schwarzenegger, and Edmund G.

Brown, Jr.); see also Gerawan Farming, Inc. v. Agric. Labor Relations Bd., 3 Cal. 5th 1118, 1156

(2017) (noting that “[t]he Legislature is presumed to be aware of a long-standing administrative

practice. . . . If the Legislature, as here, makes no substantial modifications to the [statute], there

is a strong indication that the administrative practice [is] consistent with the legislative intent”

(alterations in original) (quoting Thornton v. Carlson, 4 Cal. App. 4th 1249, 1257 (1992))).

Third, Plaintiffs suggest that EO N-64-20 affirmatively enacts, rather than merely

suspends, election rules. Id. at 13; RNC Mot. at 13. As an initial matter, it is far from clear that

this distinction matters, given that the Act broadly conveys to the Governor “complete authority

over all agencies of the state government and the right to exercise within the area designated all

police power vested in the state.” Cal. Gov’t Code § 8627; see also Op. No. SO 77-11, 60 Cal. Op.

Att’y Gen. 99 (1977) (“The Governor . . . possesses powers broad enough to encompass ordering

the mandatory rationing of water pursuant to a declaration of a ‘state of emergency,’ under the

[Act].”). But even assuming that the Governor’s authority is as limited as Plaintiffs suggest, their

contention relies on a mischaracterization of EO N-64-20, which does indeed suspend certain

portions of the Elections Code; in particular, those provisions (1) permitting counties to opt into

the VCA and its requirement to mail ballots to all registered voters; (2) requiring a certain number

of polling locations, vote centers, and ballot drop boxes; and (3) requiring county election officials

to hold certain in-person workshops and meetings.

Having failed to demonstrate that the Governor lacked authority under the Act to issue EO


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N-64-20, the RNC Plaintiffs try a different approach, suggesting that there is no “emergency” to

justify EO N-64-20 in the first place. They explicitly contend that the pandemic will no longer

constitute a crisis—and therefore will no longer justify emergency action—come November. See,

e.g., RNC Mot. at 14 (“It strains credulity to think that, with precautions, people can safely go to

the mall today, get their hair cut tomorrow, and go to church Sunday, but that a state of emergency

will prevent them from voting in person five months from now.”). This blasé and cavalier

characterization of the public health crisis is not only dangerous, but also wholly unsupported by

Plaintiffs with any medical evidence. Instead, as discussed in Part III supra, medical experts agree

that the pandemic will still constitute a significant public health crisis in November—particularly

in California.

The RNC Plaintiffs also suggest that the Governor has not made the required finding of an

emergency to justify invocation of the Act. See RNC Mot at 13–14. This is simply untrue. “The

Governor is [] empowered to proclaim a state of emergency when” (1) he finds that the

circumstances constitute a state of emergency as described in California Government Code section

8558(b), and (2) “[h]e finds that local authority is inadequate to cope with the emergency.” Cal.

Gov’t Code § 8625. Here, the Governor made this required showing in his March 4, 2020

Emergency Proclamation, which was cited in EO N-64-20. See Issa Mot., Ex. 2; see also id., Ex.

5 (articulating the reasons for the state of emergency and concluding that “local authority is

inadequate to cope with the threat posed by COVID-19”). This is all that the Act requires—the

Governor has “state[d] the circumstances of the emergency found to exist and that the emergency

is found to be beyond local control measures.” Martin, 148 Cal. App. 3d at 697.5

The RNC Plaintiffs further debate whether Defendants’ action constitute “the most

efficient and effective response,” and suggest that it is “objectively unreasonable” to proactively

5 Indeed, contrary to the RNC Plaintiffs’ erroneous reading of relevant caselaw, the Governor

exceeded the Act’s requirements by clearly articulating his reasoning in the Emergency

Proclamation, since “it is sufficient if the proclamation sets forth circumstances that support the

implied finding.” Cal. Corr. Peace Officers’ Ass’n v. Schwarzenegger, 163 Cal. App. 4th 802, 820

(2008) (emphasis added); accord Martin, 148 Cal. App. 3d at 697 (“Nothing in the emergency act

requires the Governor to make findings.”).


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mail ballots to voters given that “California already has a system set up for people to vote by mail.”

RNC Mot. at 12, 15. (quoting Macias, 10 Cal. 4th at 856). But whether any particular response to

an emergency is efficient or effective is a determination for the Governor, not this Court; the Act

“concentrates considerable power in the Governor to control and coordinate the efforts of all the

various State agencies and local governments to ensure the most efficient and effective response.”

Macias, 10 Cal. 4th at 856. Nothing in the Act requires or permits the sort of second-guessing that

Plaintiffs now seek. In any event, the absentee ballot system on which the RNC Plaintiffs rely

represents a less efficient method of ensuring that all eligible Californians can vote. During this

time of unprecedented crisis—when the U.S. Postal Service is already struggling with budget

deficits, delivery issues, and presidential antipathy6—Plaintiffs would have the State further

overwhelm the postal system by first mailing absentee ballot applications to voters, then waiting

to receive completed and delivered applications, and only then distributing ballots. This

cumbersome process would create inefficiencies, not reduce them, while also risking

disenfranchisement. See note 12 supra.

Finally, Plaintiffs make grasping arguments that the Governor’s actions, and even the Act

itself, violate the California Constitution. They are wrong. First, contrary to Plaintiffs’ assertions,

the Governor did not engage in impermissible “lawmaking.” Issa Mot. at 10; RNC Mot. at 10–11,

15. Although the Act authorizes the Governor to “make, amend, and rescind orders and

regulations” with the “force and effect of law,” Cal. Gov’t Code § 8567(a), these executive orders

do not enjoy the same status as statutes enacted by the California Legislature. Unlike legislative

enactments, such executive orders may be issued only during a proclaimed state of emergency and

have “no further force or effect” once the emergency has ended, and the Legislature retains the

power to terminate a declared state of emergency, which would in turn terminate the effect of any

executive orders issued under the Act. Cal Gov’t Code §§ 8567(a)–(b), 8629. Therefore, the Act

6 See, e.g., Brian Naylor, As More Americans Prepare to Vote by Mail, Postal Service Faces Big

Challenges, NPR (May 30, 2020), https://www.npr.org/2020/05/30/865258362/as-more-

americans-prepare-to-vote-by-mail-postal-service-faces-big-challenges.


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is consistent with the separation of powers recognized in the California Constitution, see Cal.

Const. art. III, § 3, which does not “prohibit one branch from taking action properly within its

sphere that has the incidental effect of duplicating a function or procedure delegated to another

branch” so long as it does not “exercis[e] the complete power constitutionally vested in another.”

Carmel Valley Fire Prot. Dist. v. State, 25 Cal. 4th 287, 298 (2001) (quoting Younger v. Superior

Court, 21 Cal. 3d 102, 117 (1978)). Second, the RNC Plaintiffs incorrectly assert that Article II,

Section 4 of the California Constitution “expressly entrusts the Legislature to maintain the integrity

of elections” such that “the Legislature cannot delegate to the Governor the power to . . . suspend

validly enacted election-integrity laws.” RNC Mot. at 11. But the RNC Plaintiffs conspicuously

omit that provision’s full text, which states: “The Legislature shall prohibit improper practices that

affect elections and shall provide for the disqualification of electors while mentally incompetent

or imprisoned or on parole for the conviction of a felony.” Cal. Const. art. II, § 4. In addition to

ignoring the clear limiting language of Article II, Section 4, the RNC Plaintiffs fail to identify any

caselaw—and indeed, none exists—that supports their eccentric, over-expansive interpretation of

Article II, Section 4.7

In short, because the Governor acted pursuant to the powers validly granted to him by the

Legislature, EO N-64-20 does not violate the Elections Clause or Electors Clause, and Plaintiffs

cannot succeed on the merits of their claims. Indeed, that Defendants acted consistently with the

intent of the Legislature was underscored by the passage of AB 860, which ratified EO N-64-20.

II. Plaintiffs will suffer no injury absent an injunction.

Plaintiffs have similarly failed to meet their burdens as to Winter’s equitable factors.

The U.S. Supreme Court’s “frequently reiterated standard requires plaintiffs seeking

preliminary relief to demonstrate that irreparable injury is likely in the absence of an injunction,”

which is consistent with its “characterization of injunctive relief as an extraordinary remedy that

7 Instead, the relatively few cases interpreting Article II, Section 4 understandably focus on the

provision’s disenfranchisement of felons. See, e.g., League of Women Voters of Cal. v. McPherson,

145 Cal. App. 4th 1469, 1473–75 (2006).


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may only be awarded upon a clear showing that the plaintiff is entitled to such relief.” Winter, 555

U.S. at 22; accord All. for Wild Rockies v. Cottrell, 632 F.3d 1127, 1131 (9th Cir. 2011) (“Under

Winter, plaintiffs must establish that irreparable harm is likely, not just possible, in order to obtain

a preliminary injunction.”). Plaintiffs make various assertions in support of a finding of irreparable

injury, none of which is persuasive—and certainly none of which satisfies the clear showing that

they must make to justify injunctive relief.

At the outset, Plaintiffs observe that constitutional violations constitute irreparable harm.

See Issa Mot. at 14; RNC Mot. at 16. But as discussed above, no constitutional violation has

occurred, and so this is not a sound basis for a finding of injury. Plaintiffs also suggest that altering

the voting system might result in confusion and injury. See Issa Mot. at 14–15; RNC Mot. at 15.

But while major, last-minute changes to electoral processes by federal courts should generally be

avoided, see, e.g., Republican Nat’l Comm. v. Democratic Nat’l Comm., 140 S. Ct. 1205, 1207

(2020); Purcell v. Gonzalez, 549 U.S. 1, 4–5 (2006), Plaintiffs provide no explanation—through

evidence, caselaw, or even common sense—why election plans announced by the State itself, six

months before the November Election, would result in confusion, disenfranchisement, or

diminished confidence. This is particularly true given that “[m]ost California voters already vote

by mail.” Adam Beam, California Senate OKs Bill to Mail Ballots for Fall Election, AP (June 11,

2020), https://apnews.com/8a198bbe7294befdc01fd6e67930bc65 (“More than 87% of registered

voters are scheduled to receive a ballot in the mail before the November election, including all of

the 4.3 million registered voters in Los Angeles County.”). Indeed, in their opposition to

Intervenor-Defendants’ motion to intervene, the Issa Plaintiffs themselves acknowledged that EO

N-64-20 represented only a very modest departure from normal California election practices. See

Plaintiffs’ Opposition to Motion to Intervene at 4, Issa, ECF No. 17 (“[E]ven prior to the

governor’s order, California voters could request an absentee, mail-in ballot, without having to

provide any particular reason for doing so. . . . Absentee ballots will remain available to every

California voter who wants one with or without the governor’s order.”).

The only other basis for injury advanced by Plaintiffs—and, judging by their evidentiary

submissions and complaints, the theory on which they place the most weight—is that “[EO] N-64-


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20 washes away many of the procedures and safeguards that the California Legislature

implemented, inviting illegitimate practices that will dilute the votes of honest voters in violation

of the Constitution.” RNC Mot. at 16. This is what Plaintiffs are truly litigating against—the

specter of voter fraud, a phantom threat that, despite clear evidence to the contrary, continues to

be broadcast in the leadup to the November Election, not least of all by the RNC Plaintiffs’

standard-bearer.8

And yet, despite their vociferous claims of widespread fraud, neither the Issa Plaintiffs nor

the RNC Plaintiffs have produced a shred of compelling evidence to support their allegations, and

have certainly not demonstrated any relationship between an expansion of vote by mail and a

higher incidence of voter fraud. Plaintiffs primarily rely on a limited set of studies and reports to

support their allegations of widespread fraud—in particular, the Report of the Commission on

Federal Election Reform co-chaired by Jimmy Carter and James Baker, see RNC Mot., Ex. J;

Professor Michael T. Morley’s Election Emergency Redlines, see id., Ex. K; and a case study on

the VCA authored by Stanford Law students as part of a policy practicum course, see Issa Mot.,

Ex. 10. But none of these documents qualifies as peer-reviewed research, which remains the gold

standard for validating research and determining the reliability of evidence. See, e.g., Metabolife

Int’l, Inc. v. Wornick, 264 F.3d 832, 841 (9th Cir. 2001); Fed. Judicial Ctr., Reference Manual on

Scientific Evidence 13 (3d ed. 2011). Moreover, none of the sections of these documents on which

Plaintiffs rely themselves contain citations to peer-reviewed research on voter fraud.9 Plaintiffs

also cite various news articles related to alleged voter fraud occurrences in Nevada and New Jersey,

see RNC Mot. Exs. N–Q, but one of those articles clearly states that “[p]roven cases of fraud

8 See, e.g., Elise Viebeck, Minuscule Number of Potentially Fraudulent Ballots in States with

Universal Mail Voting Undercuts Trump Claims About Election Risks, Wash. Post (June 8, 2020),

https://www.washingtonpost.com/politics/minuscule-number-of-potentially-fraudulent-ballots-

in-states-with-universal-mail-voting-undercuts-trump-claims-about-election-

risks/2020/06/08/1e78aa26-a5c5-11ea-bb20-ebf0921f3bbd_story.html.

9 Although the Stanford Law case study did provide one peer-reviewed citation in a paragraph

quoted by the Issa Plaintiffs, see Issa Mot. at 9, that research related to “vote-by-mail ballots [that]

are rejected for missing or mismatched signatures,” id., Ex. 10 at 13 & n.26, not to “risks inherent

in voting by mail,” id. at 9.


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through vote harvesting or absentee voting are exceedingly rare nationwide.” Id., Ex. N at 3.

Simply put, noting “exceedingly rare” situations of absentee ballot issues in jurisdictions outside

of California does not constitute the systematic inquiry necessary to establish a link between

expansion of vote by mail in the manner ordered by EO N-64-20 and an increase in voter fraud.

In short, Plaintiffs’ attempt to nudge their allegations of voter fraud from wholly

speculative to somehow likely falls flat, as none of this evidence actually proves, or even suggests,

that expanding mail voting in California will lead to increased voter fraud and diminished public

confidence.10 Repeating the fiction of widespread voter fraud, even in a court of law, does not

make it true—as evidenced by the courts that have rejected attempts to limit voting opportunities

based on similarly speculative allegations of voter fraud. See, e.g., People First of Ala. v. Sec’y of

State, No. 20-12184, slip op. at 19 (11th Cir. June 25, 2020) (concluding that state’s “interest for

maintaining the photo ID and witness requirements do not outweigh” burdens on voters where

evidence “suggests that Alabama has not found itself in recent years to have a significant absentee-

ballot fraud problem”); Democratic Nat’l Comm. v. Hobbs, 948 F.3d 989, 1036 (9th Cir. 2020) (en

banc) (rejecting fraud-based justification for ballot collection ban where “[t]here has never been a

case of voter fraud associated with ballot collection charged in Arizona” (quoting Democratic

Nat’l Comm. v. Reagan, 329 F. Supp. 3d 824, 852 (D. Ariz. 2018))); Paher v. Cegavske, No. 3:20-

cv-00243-MMD-WGC, 2020 WL 2089813, at *6 & n.10 (D. Nev. Apr. 30, 2020) (finding that

plaintiffs’ “claim of voter fraud is without any factual basis”); One Wis. Inst., Inc. v. Thomsen, 198

F. Supp. 3d 896, 912 (W.D. Wis. 2016) (noting that “there is utterly no evidence that [there] is a

systematic problem” of multiple voting); Am. Civil Rights Union v. Martinez-Rivera, 166 F. Supp.

3d 779, 789, 802–03 (W.D. Tex. 2015) (rejecting standing argument where alleged injuries,

10 Similarly, although Plaintiffs expend a considerable amount of ink discussing California’s

history under the National Voter Registration Act of 1993 (“NVRA”) and trumpeting Judicial

Watch’s 2019 settlement, see Issa Mot. at 1, 5–9, 15; RNC Mot. at 7–8; see also Brief of the Public

Interest Legal Foundation as Amicus Curiae, Issa, ECF No. 57, they never actually demonstrate a

link between mail ballots and voter fraud, nor explain how California’s compliance with the

NVRA has anything to do with whether the Governor validly issued EO N-64-20—which is, of

course, the legal issue actually before this Court.


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“undermined voter confidence and the risk of vote dilution, are speculative”).

Accordingly, any argument or cause of action premised on the specter of voter fraud

necessarily fails, and Plaintiffs have not demonstrated a risk of irreparable injury.

III. The balance of harms weighs strongly in favor of Defendants.

While Plaintiffs have not demonstrated any likely injury, enjoining Defendants’ plans to

expand access to mail ballots would have a devastating impact on Californians’ ability to

participate meaningfully in the November Election.

Defendants’ decision to implement vote by mail is a necessary response to a public health

crisis, one that severely curtails the ability to travel and interact with others. The expert medical

evidence in the record demonstrates that the COVID-19 pandemic is not, whatever Plaintiffs might

argue, behind us. See Declaration of Dr. Ranit Mishori (“Mishori Decl.”) ¶¶ 23–33, Issa, ECF No.

33-5 (explaining that “the consensus among public health professionals is that community spread

will still be a serious threat to public health and that infection and illness rates will remain high”

in November); Ex. 1, Declaration of Dr. John Swartzberg (“Swartzberg Decl.”) ¶¶ 5, 12

(concurring with Dr. Mishori and concluding that “COVID-19 will continue to represent a major

health crisis in November 2020”). Indeed, the evidence indicates that a resurgence of cases will

likely occur precisely around the time of the November Election, and that “[t]he risk of exposure

to infectious diseases in enclosed areas like polling places with many people entering and leaving

is significantly higher than in the community generally.” Mishori Decl. ¶ 34; see also id. ¶¶ 35–51

(detailing risks posed by in-person voting). These risks will be particularly acute in California,

where a variety of factors—an influx of students, the insalubrious consequences of wildfire season,

and the commencement of influenza season among them—will exacerbate the pandemic’s danger.

See Swartzberg Decl. ¶¶ 8–10.11 Accordingly, whether by necessity or choice, many California

voters will continue to exercise social distancing and remain sheltered in their homes in early

11 Plaintiffs, by contrast, have provided no medical evidence, expert or otherwise, to support their

repeated assertions that the ongoing pandemic does not justify Defendants’ emergency election

plans.


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November, thus necessitating the ability to vote easily and safely by mail. Without this

opportunity, voters will be forced to choose between casting a ballot in person or safeguarding

their health—resulting in effective disenfranchisement.12

“It is clear that abridgement of the right to vote constitutes an irreparable injury.” Sanchez

v. Cegavske, 214 F. Supp. 3d 961, 976 (D. Nev. 2016); see also, e.g., People First of Ala., supra,

slip op. at 24 (“The denial of the opportunity to cast a vote that a person may otherwise be entitled

to cast—even once—is an irreparable harm.” (quoting Jones v. Governor, 950 F.3d 795, 828 (11th

Cir. 2020))); Obama for Am. v. Husted, 697 F.3d 423, 436 (6th Cir. 2012) (“A restriction on the

fundamental right to vote [] constitutes irreparable injury.”); Cardona v. Oakland Unified Sch.

Dist., 785 F. Supp. 837, 840 (N.D. Cal. 1992) (“Abridgement or dilution of a right so fundamental

as the right to vote constitutes irreparable injury.”). If this Court were to prevent Defendants from

expanding the availability of mail ballots for the November Election, then any eligible Californians

who are unwilling or unable to incur the health risks to themselves and their families by voting in-

person, and who cannot timely and successfully complete an absentee ballot application, will suffer

disenfranchisement. Depriving a voter of their opportunity to cast a ballot is not only a significant

harm—“[t]o disenfranchise a single voter is a matter for grave concern,” Serv. Emps. Int’l Union,

Local 1 v. Husted, 906 F. Supp. 2d 745, 750 (S.D. Ohio 2012)—but an irreparable harm as well.

12 This is not merely a speculative risk. Normal absentee ballot procedures require election officials

to process, track, and respond to ballot applications on an ad hoc basis, rather than systematically

mail ballots to all voters on a fixed timeline. Recent elections in other jurisdictions have

demonstrated the significant administrative burdens that this process places on election officials,

particularly as requests increase due to the pandemic. As a result, not all voters who have needed

mail ballots have received them. See, e.g., Amy Gardner et al., Primary Voters in 8 States and

D.C. Faced Some Confusion, Long Lines and Poor Social Distancing, Wash. Post (June 2, 2020),

https://www.washingtonpost.com/politics/in-pennsylvania-officials-prepare-for-coronavirus-

civil-unrest-to-disrupt-tuesday-primary/2020/06/02/96a55c40-a4be-11ea-b619-

3f9133bbb482_story.html. Wisconsin’s April 2020 primary provides an instructive case study.

There, some voters who did not receive their mail ballots were forced to vote in person. See Jim

Malewitz, Their Wisconsin Ballots Never Arrived. So They Risked a Pandemic. Or Stayed Home.,

Wis. Watch (Apr. 7, 2020), https://www.wisconsinwatch.org/2020/04/ballots-never-arrived-

pandemic-or-stay-home. For these and other reasons, it is not “objectively unreasonable” for

Defendants to proactively mail ballots despite the availability of California’s absentee ballot

process, whatever the RNC Plaintiffs might suggest to the contrary. RNC Mot. at 15.


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See League of Women Voters of N.C. v. North Carolina, 769 F.3d 224, 247 (4th Cir. 2014) (“[O]nce

the election occurs, there can be no do-over and no redress.”); Fla. Democratic Party v. Scott, 215

F. Supp. 3d 1250, 1258 (N.D. Fla. 2016) (“This isn’t golf: there are no mulligans.”).

Plaintiffs have not demonstrated any likely injury that would occur absent an injunction,

let alone disenfranchisement. As discussed above, they are litigating against a mere apparition of

alleged fraud that vanishes under the light of even limited scrutiny. As one court has perceptively

noted, “a preoccupation with mostly phantom election fraud leads to real incidents of

disenfranchisement, which undermine rather than enhance confidence in elections.” One Wis. Inst.,

198 F. Supp. 3d at 903. Enjoining Defendants’ plans for vote by mail will not prevent any harms

to Plaintiffs—their supposed harms are, ultimately, imaginary—but will indisputably

disenfranchise California voters who are unable, due to the pandemic and myriad other issues, to

cast a ballot in the November Election.

IV. The public interest would not be served by an injunction.

An injunction precluding Defendants’ proactive distribution of mail ballots for the

November Election—resulting in likely disenfranchisement of eligible voters—will not serve the

public interest. “By definition, ‘[t]he public interest . . . favors permitting as many qualified voters

to vote as possible.’” League of Women Voters, 769 F.3d at 247 (alterations in original) (quoting

Obama for Am., 697 F.3d at 437); see also, e.g., Wash. Ass’n of Churches v. Reed, 492 F. Supp.

2d 1264, 1271 (W.D. Wash. 2006). This includes not only members of the Democratic Party

represented by Intervenor-Defendants, but all eligible Californians who would risk

disenfranchisement if Plaintiffs receive their requested injunctive relief. See League of Wilderness

Defs./Blue Mountains Biodiversity Project v. Connaughton, 752 F.3d 755, 766 (9th Cir. 2014)

(“The public interest inquiry primarily addresses impact on non-parties rather than parties.”

(quoting Sammartano v. First Judicial Dist. Court, 303 F.3d 959, 974 (9th Cir. 2002))). By

contrast, the public interest would most assuredly be ill-served if voters’ constitutional rights were

violated to safeguard against nonexistent instances voter fraud. See, e.g., Common Cause/Ga. v.

Billups, 439 F. Supp. 2d 1294, 1359–60 (N.D. Ga. 2006). This is particularly true given that

California already safeguards the integrity of elections, and polices potential electoral fraud,


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through other means. See Paher, 2020 WL 2089813, at *7 (“Plaintiffs’ overarching theory that

having widespread mail-in votes makes the Nevada election more susceptible to voter fraud seems

unlikely where the Plan essentially maintains the material safeguards to preserve election

integrity.”).13

CONCLUSION

Plaintiffs seek the extraordinary remedy of a preliminary injunction to dismantle

Defendants’ plans to allow all eligible California to vote safely by mail in the face of a global

health crisis. But they have failed to demonstrate a likelihood of success on the merits; to explain

how the Court can grant the relief they seek consistent with the Eleventh Amendment; to establish

that the Governor’s actions conflict with state law, especially in light of AB 860; to show why the

ongoing pandemic does not justify Defendants’ plans; and, most notably, to actually prove that

increasing Californians’ access to the ballot will result in fraud or compromise the integrity of the

November Election. Because Plaintiffs have not, “by a clear showing, carrie[d] the burden of

persuasion,” Sierra Forest Legacy, 691 F. Supp. 2d at 1207 (quoting Mazurek, 520 U.S. at 972),

Intervenor-Defendants respectfully request that this Court deny their motions for preliminary

injunction.

DATED this 25th day of June, 2020

PERKINS COIE LLP

By: /s/ Jonathan P. Hawley

13 For example, California voters must sign their mail ballot envelopes, and election officials must

conduct a subsequent signature match. See Cal. Elec. Code §§ 3011, 3019. It is also a felony to

“vote by mail ballot by fraudulently signing” and to defraud a voter through deception, and fines

and imprisonment can be imposed for wrongfully voting or tampering with mail ballots. Cal. Elec.

Code §§ 18568, 18573, 18578. Given these safeguards, when asked about the possibility of voter

fraud, Amador County Chief Deputy Registrar of Voters Mark Hammergren replied that “there’s

so many checks and balances that go[] into the process that, I don’t want to say impossible because

anything’s possible, but it’s damn near impossible.” Scott Shafer, Trump Sees Voter Fraud, but

Election Chiefs in Red Counties Do Not, KQED (June 18, 2020), https://www.kqed.org/news/

11824704/trump-sees-voter-fraud-but-election-chiefs-in-red-counties-do-not.


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Jonathan P. Hawley, Esq.

Abha Khanna, Esq.*

1201 Third Avenue, Suite 4900

Seattle, Washington 98101-3099

Marc E. Elias, Esq.*

Henry J. Brewster, Esq.*

Courtney A. Elgart, Esq.*

700 Thirteenth Street NW, Suite 800

Washington, D.C. 20005-3960

Attorneys for Intervenor-Defendants DCCC and

California Democratic Party

*Admitted pro hac vice


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CERTIFICATE OF SERVICE— PAGE 1

CERTIFICATE OF SERVICE

I hereby certify that on this 25th of June, 2020 a true and correct copy of Intervenor-

Defendants Consolidated Opposition to Plaintiffs’ Motions for Preliminary Injunction was served

via the United States District Court’s CM/ECF system on all parties or persons requiring notice.

By: s/Vanessa Salinas

Vanessa Salinas

Legal Assistant


EXHIBIT 1

Case 2:20-cv-01044-MCE-CKD Document 58-1 Filed 06/25/20 Page 1 of 10

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DECLARATION OF DR. JOHN SWARTZBERG—PAGE 1

UNITED STATES DISTRICT COURT

EASTERN DISTRICT OF CALIFORNIA

DARRELL ISSA, JAMES B. OERDING, JERRY GRIFFIN, MICHELLE BOLOTIN, and MICHAEL SIENKIEWICZ,

Plaintiffs,

v.

GAVIN NEWSOM, in his official capacity as Governor of the State of California, and ALEX PADILLA, in his official capacity as Secretary of State of California,

Defendants,

and

DCCC and CALIFORNIA DEMOCRATIC PARTY,

Intervenor-Defendants.

Case No.: 2:20-cv-01044-MCE-CKD DECLARATION OF DR. JOHN SWARTZBERG

I, JOHN SWARTZBERG, under penalty of perjury, hereby declare as follows:

I. Background

1. I am John Swartzberg, M.D., Clinical Professor Emeritus at the University of

California, Berkeley School of Public Health. My current positions at U.C. Berkeley include an

active teaching schedule (infectious diseases and clinical medicine courses) and editing two

newsletters, the U.C. Berkeley Wellness Letter and the U.C. Berkeley Health After 50 Newsletter.

I am board certified in Internal Medicine and in Infectious Diseases. I am a Fellow of the American

College of Physicians.

2. I received my medical degree from U.C.L.A. Medical School and did a residency

in internal medicine at the University of Colorado. My training in infectious diseases was at

Stanford University.

3. I have over thirty years of clinical experience practicing internal medicine and


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infectious diseases. For over four decades I have been the chair of the Infection Control and

Prevention committee at a community hospital in Berkeley.

4. Since the SARS-CoV-2 pandemic, I have devoted at least 80 percent of my

professional time to teaching graduate students about this virus, advising multiple groups at U.C.

Berkeley and the Bay Area community, consulting with multinational corporations about assuring

a safe working environment, and extensive work with local, national, and international journalists

about the pandemic.

5. I have been provided and have carefully reviewed the declaration of Dr. Ranit

Mishori, see Issa v. Newsom, No. 2:20-cv-01044-MCE-CKD (E.D. Cal.), ECF No. 33-5, which is

completely consistent with our scientific understanding of SARS-CoV-2 and the disease it causes,

COVID-19. I am wholly in accord with her observations and conclusions. I submit this report to

supplement Dr. Mishori’s analysis with an analysis specific to California.

6. I have attached to this declaration a true and correct copy of my curriculum vitae,

Exhibit A, listing my academic background and publications. I am being compensated at a rate of

$475.00 per hour. My compensation is not contingent upon my conclusions in this report.

7. I have not testified as an expert at trial or by deposition in the past four years.

II. COVID-19

8. As of June 22, 2020, the coronavirus pandemic has already infected at least 183,073

Californians and over 5,580 have died from it. COVID-19 is projected to have caused over 15,000

deaths in California by October 1, 2020.1

9. While it is not possible to predict with certainty what the pandemic will look like

in California in November, we can estimate the likely course of the disease using modeling and

the scientific information currently available. It is highly likely that we will see cases beginning to

surge in October and that this increase will continue and accelerate during the month of November.

1 Covid-19 Projections, California, Inst. for Health Metrics & Evaluations, https://covid19.healthdata.org/united-states-of-america/california (last visited June 24, 2020).


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While there are several hypotheses as to why this is likely, two are prominent:

a. Schools will reopen in late August to early September. The comingling of students

will be fertile grounds for the virus to spread.2 In California, university students

will be arriving from all 50 states and many foreign countries. Travel, especially by

air, is a very common way for individuals to become infected. Experience suggests

that we will begin to register an increase in cases about a month after schools open.

b. By November, much of California will become cooler. This will lead to people

spending more time indoors than outdoors. Because the virus can spread by droplets

and aerosols (and also by direct contact with inanimate objects), being in an

enclosed space is a much riskier environment than being outside where there is

more air movement.3 Further, it is much easier to maintain social distancing outside

than it is inside.

10. Two factors independent of COVID-19 will likely have a profound and deleterious

effect on our recovery from the pandemic during the fall of 2020:

a. At California’s latitude, influenza typically begins in late October and early

November.4 In part this is due to schools reopening several weeks earlier. Influenza

is spread similarly to COVID-19 and its typical clinical presentation is

2 Generally, health officials recommend schools take various steps to minimize the spread of COVID-19. See, e.g., Considerations for Schools, Ctr. for Disease Control & Prevention (May 19, 2020), https://www.cdc.gov/coronavirus/2019-ncov/community/schools-childcare/schools.html; Considerations for Reopening Institutions of Higher Education in the COVID-19 Era, Agency for Health Care Admin. Guidelines (May 7, 2020), https://www.acha.org/documents/resources/guidelines/ACHA_Considerations_for_Reopening_IHEs_in_the_COVID-19_Era_May2020.pdf. 3 Matthew Meselson, Droplets and Aerosols in the Transmission of SARS-CoV-2, New Eng. J. of Med. (May 21, 2020), https://www.nejm.org/doi/full/10.1056/NEJMc2009324; Valentyn Stadnytski et al., The Airborne Lifetime of Small Speech Droplets and Their Potential Importance in SARS-CoV-2 Transmission, Proceedings of the Nat’l Acad. (May 4, 2020), https://www.pnas.org/content/117/22/11875. 4 The Flu Season, Ctr. for Disease Control & Prevention (June 12, 2018), https://www.cdc.gov/flu/about/season/flu-season.htm.


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indistinguishable from COVID-19.5 While immunization against influenza does

offer some protection (in an average influenza season, about 50 percent are

protected from disease)6 and medications (e.g., oseltamivir) can help shorten the

duration of illness, influenza by itself causes a tremendous burden to society. In the

U.S. during this last influenza season that ended in April, there were 12,000–61,000

deaths and 140,000–810,000 hospitalizations caused by this virus.7 Since

September 29, 2019, there have been 706 deaths from influenza in California.8 To

have both influenza and SARS-CoV-2 circulating at the same time could easily

overburden our fragile healthcare system.

b. Throughout much of California, the fire season will be occurring at the same time

as elections. This year, it is likely the fire season will extend beyond Thanksgiving.9

The particulate matter in the air from fires inflames our airways. It is unclear if this

will make people more susceptible to infection; but it is clear that someone with

COVID-19 will be more likely to develop serious disease if their airways are

already damaged by particulate matter.

III. Conclusions

11. There are three leading hypotheses10 as to what to expect from this pandemic until

5 Similarities and Differences—Covid-19 and Influenza, Pan Am. Health Org. (Mar. 25, 2020), https://www.paho.org/en/news/25-3-2020-similarities-and-differences-covid-19-and-influenza. 6 CDC Seasonal Flu Vaccine Effectiveness Studies, Ctr. for Disease Control & Prevention (Feb. 21, 2020), https://www.cdc.gov/flu/vaccines-work/effectiveness-studies.html. 7 Disease Burden of Influenza, Ctr. for Disease Control & Prevention (Apr. 17, 2020), https://www.cdc.gov/flu/about/burden/index.html. 8 Influenza and Other Respiratory Viruses: Weekly Report, Ca. Influenza Surveillance Program, Ca. Dept. of Pub. Health (Mar. 21, 2020), https://www.cdph.ca.gov/Programs/CID/DCDC/CDPH%20Document%20Library/Immunization/Week2019-2012_FINALReport.pdf. 9 Diana Leonard, California’s Mountain Snow Cover Is Vanishing a Month Early, in a Worrying Setup for Fire Season, Wash. Post (May 8, 2020), https://www.washingtonpost.com/weather/2020/05/08/california-snowpack-fire-season/. 10 Kristine A. Moore et al., COVID-19: The CIDRAP Viewpoint, Ctr. for Infectious Disease



EXHIBIT A

UCB-UCSF Joint Medical Program 570 University Hall #1190 Berkeley, CA 94720-1190

Phone 510 643-0499 Fax 510 643-8771 E-mail [email protected]

John Swartzberg, MD, FACP

Education 1962 – 1966 University of California Berkeley, CA BA • Pi Sigma Alpha Honorary Society

1966 – 1970 University of California Los Angeles, CA MD

1970 – 1973 University of Colorado Denver, CO • Internship and Residency in Internal Medicine

1973 – 1975 Stanford University Palo Alto, CA • Postdoctoral Fellowship in Infectious Diseases

Board Certification 1973: Board Certified in Internal Medicine

1975: Board Certified in Infectious Diseases

Academic

Appointments

1976 – 1984: Assistant Clinical Professor of Medicine, University of California, San Francisco

1984 – 1990: Associate Clinical Professor of Medicine, University of California, San Francisco

1984 – 1990: Associate Clinical Professor of Health and Medical Sciences, University of California, Berkeley

1990 – Present: Clinical Professor of Medicine, University of California, San Francisco

1990 – 2011: Clinical Professor of Health and Medical Sciences, University of California, Berkeley

2012 – Present: Emeritus Clinical Professor, University of California, Berkeley

Work Experience 1975 – 2001: Internal Medicine Private Practice. Berkeley, CA

1975 – 2010: Infectious Disease Consultant. Berkeley, CA

1975 – Present: Hospital Epidemiologist, Alta Bates Hospital, Berkeley, CA

1976 – 2010: Infectious Diseases Consultant, UCB Student Health Service


1990 – 2003: Associate Director, UCB-UCSF Joint Medical Program

2001 – Present: Chair, Editorial Board, UCB Wellness Letter & Health After 50 Newsletter and berkeleywellness.com

2001 – 2010: Director, UCB-UCSF Joint Medical Program

2003 – 2016: Member, Scientific Advisory Board, Clorox Corporation

2010 – 2017: Chair, Scientific Advisory Board, OnLife Corporation

2012 – Present: Member, Board of Regents, Samuel Merritt University

Professional Societies

and Organizations

Fellow, American College of Physicians

Member, Infectious Disease Society of America

Committees and

Organizations

2008 – Present: Member, Editorial Board, American Journal of Medical Quality

2007 – 2013: Advisory Board, UC Berkeley Extension

2005 – Present: Interdisciplinary MPH Program Faculty Advisory Group

2005 – 2011: Preventive Medicine Advisory Committee

2001 – 2003: UCB School of Public Health Strategic Planning Committee

1975 – present: Chair, Infection Control Committee, Alta Bates Hospital

1992 – 2011: Co-chair or Member, Curriculum Committee, UCB-UCSF Joint Medical Program

2001 – 2011: UC Office of the President Medical Student and Workforce Advisory Committee

2003 – 2100: Chair, Appointments and Promotions Committee, UCB-UCSF Joint Medical Program

2003 – 2011: Member, UCB School of Public Health Curriculum Committee

2002 – 2011: Deans Advisory Council, UCB

2006: Chancellor’s Pandemic Flu Preparedness Task Force

2006 – Present: Chairman of the Corporate Board, Bay Area Albert Schweitzer Fellowship

2007 – 2016: American Journal of American Epidemiology editorial board

2014 – 2017: Executive Board, UC Berkeley Emeriti Association

2017 – Present: President, UC Berkeley Emeriti Association


Publications

Swartzberg JE (ed.) The Wellness Report: Eating for Optimal Health, 2009 – 2017

Swartzberg JE (ed.) The Wellness Report: Dietary Supplements, 2009 – 2017

Swartzberg, JE, Pereira, W (eds.) The Wellness Report: Men’s Health, 2009 – 2017

Swartzberg, JE, Stachel, L (eds.) The Wellness Report: Women’s Health, 2009 – 2017

Swartzberg, JE, Krauss, R (eds.) The Wellness Report: Controlling Your Cholesterol, 2009 – 2017

Rees, Rachel K, Swartzberg, John E. Feline-transmitted Sporotrichosis: A case study from California. Dermatology Online Journal 17 (6): 2, 2011

Shortell, S, Swartzberg, JE. The Physician As Public Health Professional in the 21st Century Journal of the American Medical Association 300: 2916-2919, 2008 (Dec.)

Ng C and Swartzberg JE. Evaluation of hospital policies regarding surgeons infected with bloodborne pathogens. Infection Control and Hospital Epidemiology 2005; 26(4):410-4.

Lashof, J. C., Margen, S., Swartzberg, J. E., & Herskowitz, I. (2002). Regulating natural health products [4] (multiple letters). Science, 296(5565), 46-47.

Swartzberg, John E. and Margen, Sheldon (eds.) The Complete Home Wellness Handbook. New York: Rebus, 2001.

Steinbach A; Swartzberg J; Carbone V. “ The Berkeley Suitcase Clinic: homeless services by undergraduate and medical student teams.” Academic Medicine, 2001 May, 76(5):524. Swartzberg J and Margen S. Eat, Drink, and Be Healthy: The Harvard Medical School Guide to Healthy Eating (Book Review). Am J of Epimiol. 2001. 154(12): 1160-1161.

Chen, J. L., Barrett, T., Jamasbi, R. J., Morley, B. P., & Swartzberg, J. E. (2002). Infections associated with intra-spinal catheter-pump systems for severe pain management [2]. Journal of Hospital Infection, 50(4), 322-323. doi:10.1053/jhin.2001.1156

Swartzberg, John E. and Margen, Sheldon (eds.) The UC Berkeley Wellness Self-Care Handbook. New York: Rebus, 1998.

Wertz RK, Swartzberg JE. Computerized interpretation of minimum inhibitory concentration antimicrobic susceptibility testing. Am J Clin Pathol. 1981 Mar; 75(3):312-319.

Swartzberg JE, Maresca RM, Remington JS. Clinical study of gastrointestinal complications associated with clindamycin therapy. J Infect Dis. 1977 Mar; 135 Suppl: S99-103.

Swartzberg JE, Maresca RM, Remington JS. Gastrointestinal side effects associated with clinidamycin. 1,000 consecutive patients. Arch Intern Med 1976 Aug;136(8)876-879.

Swartzberg JE, Krahenbuhl JL, Remington JS. Dichotomy between macrophage activation and degree of protection against Listeria monocytogenes and Toxoplasma gondii in mice stimulated with Corynebacterium parvum. Infect Immun. 1975 Nov; 12(5):1037-1043.


Swartzberg JE, Remington JS. Transmission of Toxoplasma. Am J Dis Child. 1975 Jul; 129(7):777-779.

Swartzberg J, Kern F Jr. Hepatitis B antibody. JAMA 1973 Apr 23; 224(4): 527.

Swartzberg JE, Heibron D, Hinman F Jr. Disuse and increased function of the dog ureter. II. Effect on length. Urol Int. 1971; 26(1):51-64.

Media and Honors National book tour for The Complete Home Wellness Handbook, 2001 – 2003.

Television: Multiple appearances: local, state (La Times), national (CNN, PBS), and international (BBC, Euronews, Eurovision)

Radio: Multiple times annually for local radio news and NPR.

Teacher of the Year, UC Berkeley School of Public Health: 1998

Consultation Dreyer’s Ice Cream: 2001

Bay Area Rapid Transit: 2012, 2015, 2020

McKesson Corporation: 2020

CooperVision: 2020

Ford Motor Company: 2020

Pac 12 Covid-19: 2020

Maxim Integrated: 2020


EXHIBIT 2


MAY 4 '92 19:07 FROM GOVERNOR'S OFFICE TO LA-OFFICE PAGE . 002 7277

EXECUTIVE DEPARTMENT

STATE OF CALIFORNIA

XXXVI

EXECUTIVE ORDER NO. W-29-92

I, PETE WILSON, Governor of the State of California, having declared a State of Emergency within the County of Los Angeles and at the request of the Secretary of State on behalf of the Los Angeles Registrar-Recorder/County Clerk, hereby invoke and promulgate the following emergency orders pursuant to Government Code section 8571.

Operation of Elections Code sections 301 and 305 is temporarily suspended until May 8, 1992.

2. The Registrar-Recorder/County Clerk of Los Angeles shallaccept as timely filed and effective for the June 2, 1992 Primary Election any properly completed affidavit of registration by any citizen of Los Angeles County that is actually received by mail or otherwise by the Office of the Registrar-Recorder/County Clerk by 5:00 p.m. on Friday, May 8, 1992.

These orders shall take effect immediately and shall only be effective within the County of Los Angeles.

IN . WITNESS WHEREOF, I have hereunto set my hand and caused the Great Seal of the State of California to be affixed this Ath day of May, 1992

Governor of California

ATTEST: march Fong Ea

Secretary of State

MAY 0 4 1992


EXHIBIT 3


7759

EXECUTIVE DEPARTMENT FILED

In the office of the Secretary of State of the State of California

STATE OF CALIFORNIA NOV 0 1 1993

MARCH FONG EU, Secretary of State

By The meyers Deputy Secretary of State

IN STATE OF

L OF THE GOVERN

XXXVI

CALIFORNIA

EXECUTIVE ORDER W-69-93

I, PETE WILSON, Governor of the State of California, having declared a State of Emergency within the Counties of Los Angeles, Orange, Riverside, San Bernardino, San Diego, and Ventura, hereby invoke and promulgate the following emergency orders pursuant to Government Code section 8571:

1 . Operation of . Elections Code sections 1007, 1009, 1013, 1017, and 14231 is temporarily suspended with respect to any duly registered voter eligible to vote at the November 2, 1993 Special Statewide Election who is a public safety, emergency services or other person officially engaged in responding to the emergencies set forth in the above-referenced orders.

2. Notwithstanding any other provision of law, elections officials in the above- referenced counties shall, upon demand, issue to any person as described inparagraph one a provisional ballot permitting that person to vote on allstatewide measures appearing on the November 2, 1993 Special StatewideElection Ballot. Upon return of such ballot by the voter by the close of thepolls on November 2, 1993, the elections official shall immediately transmitfor processing said ballot to the elections official in the county where thevoter is registered to vote.

3 The Secretary of State shall, in conjunction with local elections officials,prescribe the procedures for carrying out the provisions of this order.

This order shall take effect immediately and shall remain in effect only asnecessary to carry out the purpose of permitting duly registered voters as specified above to vote at the November 2, 1993 Special Statewide Election.

IN WITNESS WHEREOF I have hereunto set my hand and caused the Great Seal of the State of California to be affixed this ist day of November 1993.

Governor of California

ATTEST:

March Fong Eu Secretary of State

Long Mille Deputy Secretary of State


EXHIBIT 4


EXECUTIVE ORDER S-17-09

08/31/2009

WHEREAS there are wildfires burning throughout the State of California, with major fires burning in the countiesof Los Angeles, Mariposa, Monterey, Placer, Riverside, and San Bernardino; and

WHEREAS I and the Lieutenant Governor have recently proclaimed a State of Emergency to exist in the countiesof Los Angeles, Mariposa, Monterey, and Placer; and

WHEREAS a number of counties are providing mutual aid to help combat these fires, and firefighters and otheremergency workers from throughout the State are responding to these fires, and therefore are away from theirhomes; and

WHEREAS a special election will be held on September 1, 2009 in California's 10th Congressional District and its51st Assembly District; and

WHEREAS because of these fires, firefighters and emergency workers in the six counties listed above and incounties providing mutual aid, are away from their polling places and it may be difficult or impossible for theseindividuals to vote in these elections.

NOW, THEREFORE, I, ARNOLD SCHWARZENEGGER, Governor of the State of California, by virtue of thepower and authority vested in me by the Constitution and statutes of the State of California, including GovernmentCode section 8571, hereby issue the following orders:

1. Operation of Elections Code sections 3009, 3011, 3017, 3021, 14212, and 14279 is temporarily suspended withrespect to any September 1, 2009 special election in the State, for all duly-eligible voters who are public safetyworkers, emergency service workers or other persons officially engaged in responding to the fires described above.This suspension shall apply to any such voter who is from the above-listed counties or from any county that isproviding mutual aid to help combat these fires.

2. Notwithstanding any other provision of law, elections officials in the above-referenced counties shall, upondemand, issue a provisional ballot to any person described in paragraph one permitting that person to vote on allmeasures appearing on any September 1, 2009 special election ballot. Ballots shall be made available at the officeof the registrar of voters in the six affected counties, as well as the emergency incident bases in those counties.Upon return of such ballot by the voter by the close of the polls on September 1, 2009, the elections official shallimmediately transmit for processing said ballot to the elections official in the county where the voter is registered tovote

3. The California Emergency Management Agency (CalEMA), the California Department of Forestry and FireProtection (CalFIRE), and registrars of voters in the six affected counties shall work together and take necessarysteps to get ballots to the emergency incident bases in the six affected counties. The registrars of voters in thecounties covering California's 10th Congressional District and its 51st Assembly District shall be responsible forensuring that a facsimile or other copy of the ballots is available at the office of the registrar of voters in each of thesix affected counties and at the emergency incident bases in those counties.

4. The Secretary of State shall, in conjunction with local elections officials, prescribe the procedures for carryingout the provisions of this Order.

This Order is not intended to, and does not, create any rights or benefits, substantive or procedural,enforceable at law or in equity, against the State of California, its agencies, departments, entities, officers,employees, or any other person.

I FURTHER DIRECT that as soon as hereafter possible, this Order be filed in the Office of the Secretary ofState and that widespread publicity and notice be given to this Order.


IN WITNESS WHEREOF I have hereunto set my hand and caused the Great Seal of theState of California to be affixed this 31st day of August, 2009.

ARNOLD SCHWARZENEGGER Governor of California

ATTEST:DEBRA BOWENSecretary of State


EXHIBIT 5


EXECUTIVE ORDER S-19-09

09/01/2009

WHEREAS on August 31, 2009 I issued Executive Order S-17-09, which suspended certain provisions of theElections Code to facilitate voting by firefighters and other emergency service workers who are away from theirhomes fighting wildfires, and who therefore may find it difficult or impossible to vote in the special elections ofSeptember 1, 2009; and

WHEREAS some of these firefighters and other workers may not be able to reach a polling place until after 8:00p.m., when the polls typically close; and

WHEREAS it is therefore appropriate to keep certain polling places open after 8:00 p.m., and to set a uniform timefor extended voting.

NOW, THEREFORE, I, ARNOLD SCHWARZENEGGER, Governor of the State of California, by virtue of thepower and authority vested in me by the Constitution and statutes of the State of California, including GovernmentCode section 8571, hereby issue the following order, which shall supplement and be construed in conformity withExecutive Order S-17-09:

1. Notwithstanding Elections Code section 14212, elections officials in the counties of Los Angeles, Mariposa,Monterey, Placer, Riverside, and San Bernardino shall allow firefighters and other emergency workers to cast theirballots in any special election held on September 1, 2009 until 10:00 p.m. on that day, in those areas designated forextended voting by local elections officials. Those officials shall consult with the Secretary of State, the CaliforniaEmergency Management Agency, and the California Department of Forestry and Fire Protection in determiningwhich areas to so designate.

2. In accordance with Elections Code section 15152, election results shall not be released until after 10:00 p.m. onSeptember 1, 2009.

This Order is not intended to, and does not, create any rights or benefits, substantive or procedural,enforceable at law or in equity, against the State of California, its agencies, departments, entities, officers,employees, or any other person.

I FURTHER DIRECT that as soon as hereafter possible, this Order be filed in the Office of the Secretary ofState and that widespread publicity and notice be given to this Order.

IN WITNESS WHEREOF I have hereunto set my hand and caused the Great Seal of theState of California to be affixed this 1st day of September 2009.

ARNOLD SCHWARZENEGGERGovernor of California

ATTEST:DEBRA BOWENSecretary of State


EXHIBIT 6






Documents

PERKINS COIE LLP · JERRY GRIFFIN, MICHELLE BOLOTIN, and MICHAEL SIENKIEWICZ, v. GAVIN NEWSOM, in his official capacity as ... MAY 0 4 1992 Case 2:20-cv-01044-MCE-CKD Document 58-2