BY BRADLEY HERTZ
Originally Appeared in San Fernando Valley Bar Association or Valley Lawyer
The following article on election law is particularly timely in view of the upcoming November elections. It contains content that is both informational and, in some respects, could be seen as reflecting the opinions of the writer. Any views or opinions, either expressed or implied, in the article do not necessarily reflect the opinions of the San Fernando Valley Bar Association or Valley Lawyer magazine.
Since the March 3, 2020 primary election, the world has changed in innumerable ways as not a day goes by without news of the COVID-19 pandemic and its ravaging effects on both the human body and the body politic.
In addition to COVID’s dramatic impact on the primary election season this past winter and spring, COVID continues to wreak havoc on the democratic process as the November 3, 2020 Presidential election―and all the state and local elections that are consolidated with it―draws near. While the full effects of the current pandemic remain to be seen, COVID has already changed our democracy in unimaginable ways.
Politics is a contact sport; wearing masks and staying six feet apart is a far cry from glad-handing and kissing babies. Not being allowed to personally interact at close range has a ripple effect throughout the entire democratic process as we know it―on the candidates themselves, ballot measures, political parties, and the way we choose to govern ourselves.
As Abraham Lincoln said, “Elections belong to the people. It’s their decision. If they decide to turn their back on the fire and burn their behinds, then they will just have to sit on their blisters.”
With COVID’s distancing requirements, people should be protected from the blisters to which Lincoln referred, and, although they may not have to sit on their scorched behinds, hopefully they also won’t be sitting on their hands.
This article discusses various ways in which COVID has thrown a wrench into the democratic process, especially the California political zeitgeist in which initiatives, referenda, recalls and litigation play such an important role.
While some of COVID-19’s effects, such as the increased role that the vote by mail process will have, the wearing of masks for nearly all public interactions, and the rise of the Zoom call in lieu of in-person events, are obvious, some impacts are less obvious and not visible to the naked eye.
From the perspective of an election law practitioner, it is hoped that this article provides a lens through which democracy in the time of COVID-19 can be better understood and addressed.
I, R, R, Where Art Thou?: Initiatives, Referenda, and Recalls
Who among us has not been approached in front of a supermarket and asked to sign a petition?
According to one writer, “By making the government a combination of elected officials and citizen-backed initiatives and referenda, there can truly be a government of the people, by the people, and for the people.”
Despite the Lincolnesque appeal for robust public participation in the political process, the in-person circulation of petitions to qualify measures for the ballot, a staple of California politics for generations, has come to a virtual standstill―a reality that has not only dashed the hopes of many who were pushing various issues for the November ballot, but has also raised some unique and thorny issues for the courts.
Legalizing Sports Betting
When a proposed ballot measure to legalize sports betting at tribal casinos and horse racetracks was unable to gather enough signatures to qualify for the November 2020 ballot, the proponents filed a suit to ask for more time.
Sacramento County Superior Court Judge James P. Arguelles extended the usual 180-day deadline and thus gave the proponents more time to gather signatures. As a result, the measure now has the opportunity to appear on the November 2022 ballot, without signature gathering having to start anew.
Although in-person signature gathering is certainly the most common and successful way to qualify measures for the ballot, it is not the only way. Efforts have been made to find outside-the-box methods―from direct mail and email, to online approaches―to collect signatures, with limited success.
One such measure is the California Plastic Waste Reduction Regulations Initiative.
Although the proponents of the Plastic Waste Reduction measure submitted their ballot measure language to the state in November 2019―a year before the November 2020 election, as is suggested by the experts―and were permitted to collect signatures beginning in January 2020, by March the onset of COVID-19 had dashed their plans.
The proponents creatively organized an energized email signature gathering effort in which voters were asked to download the petition, sign it, and mail it in.
The strategy was made more viable by the recently enacted Elections Code Section 108, which expressly allows petition pages to be bound together “by any reasonable method, including the use of staples,” and because of the brevity of the measure, its lack of color maps or legal-sized paper, and other aspects of the physical document that reduced the problems that often arise with electronically transmitted petitions.
By June 2020, though, it had become clear to the proponents of the Plastic Waste Reduction measure that they would not to be able to meet the July signature submission deadline.
So, off to court they went and, as with the sports betting measure, Judge Arguelles extended the signature gathering deadline to account for the introduction of COVID-19 -related shelter-in-place orders.
Even though several measures did not qualify for this November’s ballot and will have to wait for the 2022 election, California voters will still see a dozen statewide measures asking them to weigh-in on issues ranging from stem cell research, property taxes, and rent control to labor law, consumer privacy, and the bail system.
Making It Under the Wire
On November 20, 2019, the City of Oceanside’s Council majority approved a much-debated residential real estate development project, but opponents gathered approximately 12,500 signatures on a referendum petition by the December 20 deadline, thus forcing the matter onto the November 2020 ballot.
Had the Council approved the project in March 2020 instead of a few months earlier, COVID-19 might have interfered with the ability to qualify the referendum for the ballot. In this way, and in many ways we will never know about, COVID-19 is a political game-changer.
Whether the courts would have extended the 30-day referendum signature gathering period codified in Elections Code Section 9237―as they did with regard to the 180-day initiative signature gathering period as discussed above―or whether the courts would have taken a laissez faire approach, as they did with regard to the Common Sense Party as discussed below, remains to be seen.
Dueling recall efforts directed toward rival members of the Oceanside City Council were well under way when the COVID crisis hit, causing both factions to abandon their recall plans due to the difficulty of obtaining signatures for their respective petitions.
According to NBC News, as of April of this year, at least 21 groups had suspended signature gathering efforts on issues ranging from minimum wage increases and gun control to criminal justice reform and cannabis.
In the same way that so many of our nation’s students are missing out on traditional in-person learning, our nation’s policy wonks and everyday people are missing out on their rights of passage relative to making important decisions on public policy issues.
A COVID-19 Cannabis Compromise
A cannabis-related initiative in the City of West Hollywood was abandoned due to COVID-19 because the initiative’s proponents were unable to gather the necessary signatures.
However, the story did not end there. Because a separate cannabis measure had already qualified for the ballot the old-fashioned way―that is, by gathering signatures―proponents of the second measure asked the City Council to place their measure on the ballot even without the requisite number of signatures.
Proponents claimed that because of social distancing guidelines implemented by the Governor and other governmental actors, they had to abandon their in-person petition circulation efforts.
Although the City Council seriously considered putting the competing measure on the ballot, an 11th-hour compromise was reached among stakeholders, and, as a result, neither of the measures will appear on the November ballot.
As one City Councilmember put it, with so much else going on with COVID-19, including the city’s economic challenges―even the world famous WeHo Halloween Carnival has been cancelled―the city did not want to face an expensive and divisive campaign with two competing cannabis measures on the ballot.
The ability of the proponents of the circulated measure to withdraw it from the ballot no later than 89 days before the election is the result of recently enacted Elections Code Section 9215.5. In the past, once a measure qualified and the legislative body placed it on the ballot, everyone was past the point of no return, and an election was, barring judicial intervention, inevitable.
Section 9215.5, however, was designed to encourage legislative compromise at the local level, so that the proponents are able to withdraw the measure from the ballot if their legislative goals have already been met, usually via a compromise with the city.
Political Party Qualification
California election law provides procedures for the formation of new political parties.
These protocols, codified in Elections Code section 5151, et seq., enable a political body to become an official political party if .33 percent of the voters―or approximately 68,000 voters for this election cycle―declare their preference for that party by a certain deadline.
A group seeking to become the Common Sense Party of California, whose leaders include former Congressman and Chapman Law School Dean Tom Campbell, was in the process of registering new voters and was approximately one-third of the way toward achieving its goal when the pandemic took hold. 
The courts were less forgiving than they had been toward the sports betting and plastic bag initiative measures when the group appealed to both federal and state courts asserting that COVID― and the government’s response thereto―made the applicable statute unconstitutional as applied because of the inability to continue gathering in-person signatures.
The United State Supreme Court has been especially reluctant to expand voting rights in the era of COVID-19.
In cases arising out of election-related lawsuits in Wisconsin, Texas, Alabama and Florida, the High Court has refused to ratify the concept that accommodations need to be made to enhance vote by mail options, increase participation of those who were formerly incarcerated, or otherwise revise the status quo.
Due to the ongoing COVID-19 pandemic, November 3, 2020 is sure to be an election day like no other.
Not only were the Democratic and Republican National Conventions in August bizarre affairs in that they were virtual instead of in-person, but the debates, the campaigns, and nearly all other aspects of this election cycle are unusual and unlike the democratic process we have grown accustomed to.
Vote by Mail Ballots
No discussion of COVID’s impact on the democratic process would be complete without mentioning the vote by mail process as not a day goes by without a major announcement about, or attack on, vote-by-mail (VBM) ballots.
What many fail to realize, however, is that the VBM process has been in use in California since 1962. At that time, a mere 2.63 percent of voters cast their ballots by mail. Over the next half-century, however, that number steadily increased, and by the March 2020 primary election, 72.08 percent of California voters voted by mail.
With the onset of COVID-19, this percentage is certain to increase to nearly 100 percent, especially in California, where the election will be conducted as an all-mail ballot election.
Instead of voters having to request a VBM ballot―as has been the case for as long as many of us can remember―all voters will be sent one so they will not have to visit their local polling place and risk exposure to the virus. Even so, those who express a need to vote in-person, including people with disabilities, those who do not speak English, and people experiencing homelessness, will still be able to do so.
Gone, however, are traditional and familiar local polling places.
Instead, we will be seeing regional vote centers and ballot drop-off locations, including at large stadiums and sports arenas, as well as extremely busy U.S. Postal Service workers.
The all-mail ballot election rule for the November 2020 election first came into being in May 2020, via Executive Order N-64-20 issued by California Governor Gavin Newsom.
The State Legislature followed suit by adopting Assembly Bill 860, which the Governor signed in mid-June.
The law, which took immediate effect as urgency legislation, amended the California Voter’s Choice Act to add Section 3000.5 to the Elections Code, and requires that on or about October 5, 2020―29 days before the election―all voters will be sent a VBM ballot. Those who register after that date must be sent a ballot within five days after they register to vote.
Remote Accessible Vote By Mail
What’s more, Section 3016.7 has been added to the Elections Code, and permits any voter―not just the disabled, military or overseas voters―to use the remote accessible vote by mail (RAVBM) system.
This allows any voter to mark an electronic vote by mail ballot on a personal computer, print out a paper cast vote record, and submit it to the elections official.
After a contentious April 2020 recall election in the Orange County community of Westminster, rumors circulated that the all-mail election and the RAVBM system had been rife with fraud.
However, after a five-week recount in which each of 17,205 ballot and vote by mail envelopes were meticulously examined, the recount concluded with no change to the vote totals.
Even so, the increasing liberalization and expansion of the VBM process has some election watchers concerned about possible voter fraud.
Notwithstanding partisan attacks on the process, however, polls conclude that a substantial majority of Californians have confidence in the integrity of the VBM process.
Familiarity, thus, breeds comfort rather than contempt, in that those who have consistently voted by mail in the past are more trusting of the process than those who have not.
Also, more and more counties are employing sophisticated ballot tracking systems so that voters can monitor their ballots as they make their way through the system, much as one would do with a FedEx or UPS package.
Los Angeles County’s BallotTrax system enables voters to track their ballot to see when it is received by the Registrar and counted.
Finally in this regard, systems have long been in place that reject duplicate ballots, forged ballots, and ballots cast by those who are not eligible voters.
Although the VBM system is by no means perfect, there is very little evidence of fraud or other large-scale gaming of the system in a way that undermines the integrity of the election process.
Hopefully, by the time the 2022 mid-term elections roll around, things will back to politics as usual, at least in the sense of not having the COVID-19 albatross around our collective neck.
But more likely than not, things will never be the same. And when we look back, many election cycles from now, at these crazy times, we’ll be able to say “I remember when . . . .”
For those interested in further reading about the legal and political wrangling wrought by COVID-19, the University of Chicago Law Review Online featured a series of Pandemic Elections articles, including one by UC Irvine Law Professor Richard L. Hasen entitled Direct Democracy Denied: The Right to Initiative During a Pandemic.
Additionally, the Congressional Research Service has a series of publications about COVID-19 and elections, one of which pertains to election emergencies and recent policy developments. And, for a fascinating read in Time Magazine about The Plague Election, see “How COVID-19 Changed Everything About the 2020 Election.”
 Victoria Stoklasa, Sign It Into Law: How to Put Your Petition on the Ballot (Amazon Books), 2013.
 California Elections Code section 13314 and Code of Civil Procedure section 1085 contemplate pre-election litigation and allow for courts to issue equitable remedies, usually in the form of writs of mandate, where specified criteria are satisfied and where the relief will not substantially interfere with the conduct of the election.
 Marc Macarro, et al. v. Alex Padilla, Sacramento County Superior Court Case No.
34-2020-80003404 (July 3, 2020).
 The Graduate (1967).
 Per Elections Code Section 9020, electronic petition signatures are not permitted.
 Elections Code Section 9014(b) provides for a 180-day statewide initiative petition circulation period.
 Michael Sangiacomo v. Alex Padilla, Sacramento County Superior Court Case No. 34-2020-80003413 (July 2, 2020).
 “County Verifies North River Farms Referendum” (San Diego Union Tribune) March 19, 2020) https://www.sandiegouniontribune.com/communities/north-county/oceanside/story/2020-03-19/county-verifies-north-river-farms-referendum.
 “Oceanside Recall Efforts Go Low-Key During Pandemic Crisis,” San Diego Union Tribune (April 26, 2020) (https://www.sandiegouniontribune.com/communities/north-county/oceanside/story/2020-04-26/recall-efforts-go-low-key-during-pandemic-crisis); “Second Oceanside Council Recall Effort Halted, Says It Was ‘COVID-Bit’,” San Diego Union Tribune (June 2, 2020) (https://www.sandiegouniontribune.com/communities/north-county/oceanside/story/2020-06-02/second-oceanside-council-recall-effort-halted-says-it-was-covid-bit).
“Ballot Initiatives Navigate Uncharted Paths to 2020 Election” (April 27, 2020) (https://www.nbcnews.com/politics/2020-election/ballot-initiatives-navigate-uncharted-paths-2020-election-n1192211).
 California Elections Code Section 9222
 “Unless a Compromise Is Reached by August, There Will Be Two Cannabis Initiatives on the Ballot” (WeHoVille) June 16, 2020) (https://www.wehoville.com/2020/06/16/unless-a-compromise-is-reached-by-august-there-will-be-two-cannabis-initiative-on-the-ballot/).
 Elections Code Section 5151(c)(1).
Tom Campbell, “California Needs a Party That Stands for Common Sense” (Orange County Register) August 22, 2020 (https://www.ocregister.com/2020/08/22/california-needs-a-party-that-stands-for-common-sense-tom-campbell/).
 The Common Sense Party v. Alex Padilla, et al., U.S. District Court Case No. 2:20-cv-01091 and Sacramento County Superior Court Case No. 34-2020-90003427 .
 “As Concerns About Voting Build, The Supreme Court Refuses to Step In” NPR (July 25, 2020) https://www.npr.org/2020/07/25/895185355/as-concerns-about-voting-build-the-supreme-court-refuses-to-step-in.
 “Historical Vote-By-Mail (Absentee) Ballot Use in California” (https://www.sos.ca.gov/elections/historical-absentee/).
 “Governor Newsom Issues Executive Order to Protect Public Health by Mailing Every Registered Voter a Ballot Ahead of the November General Election” (May 8, 2020) (https://www.gov.ca.gov/2020/05/08/governor-newsom-issues-executive-order-to-protect-public-health-by-mailing-every-registered-voter-a-ballot-ahead-of-the-november-general-election/).
 Assembly Bill 860 (https://leginfo.legislature.ca.gov/faces/billTextClient.xhtml?bill_id=201920200AB860)
 Elections Code Section 303.3.
 Berkeley Institute of Governmental Studies Poll Release #2020-16: “Californians Confident in Mail-In Voting Despite Partisan Attacks” (August 24, 2020) (https://escholarship.org/uc/item/1mm8c6v6).
 Elections Code Sections 18000, et seq. contain dozens of criminal provisions to guard against election fraud and to enable district attorneys and “private attorneys general” to enforce these laws.
 “The False Narrative of Vote-by-Mail Fraud” (April 10, 2020) https://www.brennancenter.org/our-work/analysis-opinion/false-narrative-vote-mail-fraud.
 https://lawreviewblog.uchicago.edu/2020/06/26/pandemic-election/ (June 2020).
 https://lawreviewblog.uchicago.edu/2020/06/26/pandemic-initiative-hasen/ (June 2020).
 https://crsreports.congress.gov/product/pdf/R/R46455 (July 16, 2020).
 https://time.com/5876599/election-2020-coronavirus/ (August 6, 2020).