Not So Fast Gavin; Newsom's Senatorial Nomination May Not Be Legal

Not So Fast Gavin;  Newsom's Senatorial Nomination May Not Be Legal
AP Photo/Noah Berger

Not much has stopped Gavin Newsom since the beginning of COVID-19 lockdowns, as he has made numerous Unconstitutional Orders which have since been overturned by the courts.  Aside from the fact that Gavin’s own behavior shows he doesn’t believe his own orders, Gavin has continued to issue these edicts, despite legal challenges from those both in and out of the party.   Most recently, many of Newsom’s lockdown orders were found Unconstitutional by the courts.

It appears that Gavin might not be done getting smacked down by the courts.  California Assemblymember Kevin Kiley has been at the forefront of fighting for Californians’ rights, first with his actions he has taken against AB 5, and later with Newsom’s COVID orders.  Now Kiley has sought the opinion of the Office of Legislative Counsel, regarding Newsom’s appointment of California Secretary of State, Alex Padilla, to the seat vacated by Vice-President Elect, Kamala Harris.

Kiley questioned whether or not the seat should be filled by appointment by Governor Newsom, or by special election.  The Legislative Counsel answered that the Consitution required that Newsom issue a “writ of election” that would call for a special election to fill the vacancy.  Considering this opinion came from the Legislative Counsel’s office shows that this isn’t some random GOP lawyer who came to this conclusion.

From Kiley’s website:

Even after being restrained by the courts for exceeding his authority, Newsom is once again trying to claim for himself power that resides with the people. The last thing California needs is for Newsom’s one-man rule to yield a hand-picked Senator who could serve for decades.

In choosing Padilla, Newsom is not just trying to unlawfully install his own political ally as our permanent Senator. He’s also elevating a politician who just illegally gave $35 million in taxpayer funds to a “Team Biden” firm for “voter education.” As our state’s top elections official, Padilla used his post to illegally influence elections; now he’s presuming to become a Senator without an election at all.

The irony would be dizzying, if we weren’t already so well-oriented to two central facts of California politics: corruption is the way to climb the ladder, and Gavin Newsom’s shamelessness in advancing his interests knows no bounds.

Kiley then went further to prevent Newsom from advancing his potentially illegal agenda by drafting a letter to Senate Majority Leader, Mitch McConnell, to prevent Padilla from being seated against the legal opinion of the Legislative Counsel.

From the Letter to Mitch McConnell:

In a December 22 press release, California Governor Gavin Newsom announced his intention to appoint Secretary of State Alex Padilla to the United State Senate, “filling the term being vacated by Vice President-elect Kamala Harris.”

However, the enclosed legal opinion by the State of California Office of the Legislative Counsel has concluded that the Seventeenth Amendment to the U.S. Constitution “requires the Governor to issue a writ of election” to fill the vacancy created by Senator Harris’ resignation and requires that “the person elected in the vacancy election takes office before the end of the existing term.” This finding is inconsistent with the Governor’s statement that Padilla will “fill[] the term being vacated” by Senator Harris.

Furthermore, while the Governor’s statutory authority to make an appointment comes from California Elections Code 10720, the Legislative Counsel opinion finds that “existing case law casts doubt on the validity of the second sentence” of that section. Pursuant to that second sentence, Mr. Padilla would serve the remainder of Senator Harris’ term in the absence of a Special Election. If a Court were to agree that the sentence is unconstitutional while also holding that it is not severable – that is, if a court finds that the unconstitutionality of that provision also invalidates the statute’s other two sentences – then the Governor of California would have no authority to appoint a United States Senator.Article 1, Section 5 of the U.S. Constitution authorizes each house of Congress to “be the Judge of the Elections, Returns and Qualifications of its own Members.” If Governor Newsom proceeds with the appointment of Mr. Padilla as planned, the Senate may wish to consider whether the legal issues relating to the appointment raised by the Legislative Counsel Opinion require resolution before Mr. Padilla is seated.

Whether or not an actual legal challenge will take place or whether or not Mitch McConnell will refuse to seat Padilla is still yet to be seen.  As brave as Kiley’s actions are and as much good as he has done up until this point, It is hard seeing Padilla seated by the Senate as soon as business allows them to do so. Is it right?  No.  But since when has Gavin Newsom and the rest of the California Democrats cared about right or wrong?


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