Gov. Newsom Faces Big Decisions: Some Will Not be Easy!

Richard Rubin
Attorney Richard Rubin has taught at the University of San Francisco, Berkeley and Golden Gate University, is a regular columnist for the Marin Independent Journal and was Chair of the California Commonwealth Club Board of Governors, 2017-2019.

California Governor Gavin Newsom and other state leaders will have a couple of critical decisions to make in the coming weeks and months which could challenge Donald Trump’s notion that the president has “absolute powers.”

A coronavirus task force press briefing began with video highlights tantamount to a campaign ad patched together to justify Trump’s defense of his steps (or lack thereof) to combat the pandemic.  

It quickly deteriorated into a shouting match with reporters during the Q&A session with Trump expounding on his expansive views as the nation’s foremost advocate of the imperial presidency.

When challenged to say what he might do if states defied orders to end their stay-at-home shut downs sooner than desirable he responded angrily, “The authority of the president of the United States is total.”

The 10th Amendment of the Constitution appears to say otherwise which reserves to the states and the people powers not specifically delegated to the federal government.

Trump’s pronouncements could set up a fight which Newsom who has been generally complimentary of the president’s forbearance in his criticisms of the governor would prefer not to pick.

States under their “police powers” give governors the ability to close restaurants, movie theaters, sports arenas and even places of worship if there are indisputable threats to public safety.

These powers supersede any orders which this president may give despite his apparent determination to reopen the country before it may be safe to do so.

Newsom has made it clear that he will rely upon the advice of scientists and medical experts before taking steps to lift the state-wide shut-down and is not inclined to rush it.

Newsom has announced a tentative six-point plan which could result in some business re-openings but is stressing that it depends upon “more testing, testing, testing.”

The state, Newsom said, must “figure out a way of doing this where we don’t let down our guard and put ourselves in a position where we regret moving too quickly.”

He has signaled that these calibrations will be made in conjunction with Oregon and Washington realizing that the virus does not respect any geographical boundaries. 

California just like many states may be many weeks away from having the necessary testing equipment vital to determining how best to limit the continuing spread. The federal government needs to be a partner in this but the delays in speeding assistance is putting the onus on the states to make their own decisions.

Given the tepid federal response California has joined in a compact with several  neighboring states to share equipment and data following in the actions New York and its East Coast brethren have simultaneously taken.

Trump’s blustering and flexing of muscles while he persists in revising history and defending serious mistakes and delays by his administration that are well documented offers little comfort as the nation exceeds 600,000 infections and over 25,000 deaths.

It has become eminently clear that the pandemic is peaking at different rates in different regions of the nation. The only reason California has so far been able to “flatten the curve” is attributable to its rapid adoption of stringent measures  

California got ahead of the curve weeks before Trump and his advisors had their act together which is widely believed to be responsible for the horrendous rate of infections and death toll in New York and elsewhere.

The emergency orders issuing from Sacramento have offered some assurance that the Golden State may be able to ride out the first wave of the pandemic providing families do not let up on the strict state-at-home discipline we are exerting.

Still there is no guarantee that the lethal virus will not have a resurgence in the Fall or sooner which could alter the timelines when people can go back to work, children are able to return to school and we see any semblance of normalcy. 

Trump’s own medical advisors are suggesting that reinfections “may be inevitable,” as happened with the disastrous Spanish Flu outbreak in 1917-1918 which claimed millions of lives. 

Absent a vaccine it is unclear how many have already or will gain immunity and antibiotic therapies that can help those less ill are still in early experimental stage.

The coronavirus pandemic is still a long way from over but another kind of crisis may be on the horizon.  It is not of the transmissible variety though it carries the seeds of long term consequences for the nation if it is not managed properly.  

Debate is heating up on whether and how the 50 states plan to exercise one of the essential functions of a democracy—the right to vote. 

If the health crisis is not largely arrested by November when the nation is constitutionally mandated to hold a presidential election millions of citizens could find themselves disenfranchised. 

As the Wisconsin primary just concluded demonstrated, voters were forced on to long lines while awaiting entry to polling places who could have had the virus or were completely exposed to others that might have been carrying the infection.

California has already moved to a ballot-by-mail system that would spare voters from making this choice. More than 65% of the state’s 19 million registered voters sent in their ballots in the 2018 midterm elections. That number is expected to rise significantly in the 2020 presidential election. 

We also permit early voting, allow people to register to vote online and enable residents to become permanent mail-in voters. This process gathered steam under the Voter’s Choice Act, where counties are required to mail a ballot to every registered voter. 

Los Angeles County has a one-time exemption from this requirement in 2020, but  Sec. of State, Alex Padilla and the County Board of Supervisors have asked the L.A. County Registrar to explore expanding vote-by-mail to every voter in November.

Los Angeles experienced huge lines and other disruptions at many vote centers during the March primary.

Already, five western states — Colorado, Hawaii, Oregon, Utah and Washington — conduct full all-mail elections, sending every voter a ballot. California is close behind.

Gov. Gavin Newsom signed an executive order last week allowing vote-by-mail for three special elections coming up in the next few months and giving counties an additional 21 days to finish counting ballots from the March 3 primary. 

“It turns out that the policies California has put in place to increase access to the ballot also make perfect sense for conducting elections during a health pandemic,” Padilla said in an interview. “We stand ready to assist any other states and share our experience with them on how best to do it.”

In the Bay Area, San Mateo and Santa Clara counties already send a ballot to every voter under the Voter’s Choice Act. The other counties are not far behind.

Trump contends that mail-in-voting is an invitation to fraud zeroing in on California as a case in point citing a Judicial Watch settlement involving lists of inactive voters in Los Angeles County who should have been purged. However ,there was no mention about fraud even by those suing.

The House Minority Leader Rep. Kevin McCarthy (Bakersfield) has repeated Trump’s fraud warnings although there is barely a scintilla of evidence of any truth to the claims.

Oregon, the nation’s first state to promote mail-in voting in 2000 has documented about a dozen cases of proven fraud since then in over 100 million mail-in ballots.

The president’s concerns may stem from another discredited belief that Republicans “would never be elected again” if Democrats succeed in broadening mail-in-voting.

Ohio’s GOP Gov. Mike DeWine debunks this theory in a video just released promoting mail-in-voting which says, “The highest turnout presidential election we ever had was 2016. The highest turnout gubernatorial election we ever had was 2018.” Ohio voted Republican in both elections.

Newsom is lucky–he has only 40 million people to worry about. Trump has 328 million. It does not change the fact that every life should have equal value!

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