As the COVID-19 pandemic continues and state and local governments take different approaches in responding it, an increasing number of cases have been filed against alleged government overreach.  At first they were largely First Amendment cases, as we have previously covered (5/5, 4/22, 4/16, 4/13, 4/9, and 3/27), but now litigation is pending on nearly every government action in response to the pandemic, including challenges to governors' entire executive orders.  

Last week, the Wisconsin Supreme Court struck down Governor Tony Evers' "safer-at-home" order.  RNLA member Jake Curtis analyzed the decision, which was made on state separation of powers grounds:

Continuing their wide-ranging efforts not to let a good crisis go to waste, Democrats and their liberal allies are using the novel coronavirus pandemic as an excuse to call for increased censorship, particularly of online speech.  This is not a new effort for them but merely a new excuse, and they are alarmingly praising communist China as a model for online speech censorship (yes, the same China that recently suppressed and threatened those who shared accurate information at the beginning of the COVID-19 outbreak, blocks its citizens access to many websites, and regularly monitors individuals' "private" conversations on various chat and email platforms).  As George Washington University Law Professor Jonathan Turley wrote:

Yesterday, the California Republican Party, represented by RNLA Co-Chair Harmeet Dhillon, filed suit in the Superior Court for Sacramento County against Democratic Governor Gavin Newsom, Attorney General Xavier Becerra, and Secretary of State Alex Padilla.  

The complaint seeks clarification of the governor's overreaching Stay Home Order in response to the COVID-19 pandemic, which could be interpreted to designate ballot harvesters as "nonessential workers" who must stay home under the order.  The complaint seeks clarification so that "all candidates and their supporters are . . . abiding by the same rules" for the May 12 special congressional election.

During the COVID-19 pandemic, state and local governments are taking many steps to protect the health and safety of their residents.  There is broad--and increasing--debate over the wisdom of some of these measures.  No one can deny the unprecedented nature of the threat from this novel coronavirus, but it is equally true that Americans do not surrender all their First Amendment liberties during times of disaster or distress.  Indeed, there are established bodies of law that apply to government restrictions on free speech and religious liberties, even during a public health crisis.  This Friday on a Zoom webinar for RNLA members, two experts--Rick Esenberg and Casey Mattox--will address restrictions on free speech and religious liberty during the current pandemic.

During a small Mississippi church's drive-in midweek service during Holy Week, police officers issued $500 citations to all the worshippers for violating the mayor's COVID-19 order.  The worshippers were ticketed despite sitting in their socially distanced cars with their windows up when other people were allowed to pick up food from a drive-in restaurant with their windows down and despite the fact that the Mississippi governor's executive order regarding COVID-19 had specifically allowed religious services that followed social distancing guidelines.  

The church sued and requested a temporary restraining order for violating its rights under the Free Exercise, Free Speech, and Right to Assemble Clauses of the First Amendment, the Due Process Clause of the Fourteenth Amendment, the Mississippi Religious Freedom Restoration Act, and the relevant Mississippi executive orders.  Tuesday, the U.S. Department of Justice filed a Statement of Interest in the case.

RNLA Board of Governors member and former FEC Chairman Matthew Petersen and RNLA member and former EAC Chairwoman Gineen Bresso, both currently attorneys with Holtzman Vogel Josefiak Torchinsky PLLC, wrote in The Hill about how Democrats in Washington are trying to use the COVID-19 pandemic as an excuse to federalize election administration and overwrite many state laws, systems, and rules before the election this fall.  They describe how important our decentralized election system is:

RNLA Co-Chair Harmeet Dhillon's non-profit organization, Center for American Liberty, is threatening to sue two California counties for banning all out-of-home participation in religious services as part of their overreaching orders during the COVID-19 pandemic.  If the counties do not rescind their orders or provide accommodation for religious liberty by this evening, in the midst of important Jewish and Christian religious holidays, the Center for American Liberty will seek an injunction:

Senator Tom Cotton was the first to recognize the coming COVID-19 pandemic.  As John McCormack wrote in National Review in an article entitled "The Senator Who Saw the Coronavirus Coming":

Tom Cotton was both the first and the loudest voice in Congress to sound the alarm about the looming pandemic.

While others slept, Tom Cotton was warning anyone who would listen that the coronavirus was coming for America.

On January 22, one day before the Chinese government began a quarantine of Wuhan to contain the spread of the virus, the Arkansas senator sent a letter to Secretary of Health and Human Services Alex Azar encouraging the Trump administration to consider banning travel between China and the United States and warning that the Communist regime could be covering up how dangerous the disease really was. That same day, he amplified his warnings on Twitter and in an appearance on the radio program of Fox & Friends host Brian Kilmeade. . . .

“Two things struck me about China’s response,” he says. “First their deceit and their dishonesty going back to early December. And second, the extreme draconian measures they had taken. By the third week of January, they had more than 75 million people on lockdown. They were confined to their homes and apartments, otherwise they were arrested. In some cases, the front doors of those buildings were welded shut. All schools had shut down. Hong Kong had banned flights from the mainland. [These are] the kind of extreme, draconian measures that you would only take in a position of power in China if you were greatly worried about the spread of this virus.”

It is not an optimal situation but let’s be real, context and the rule of law matter. Honest liberals and even Joe Biden give qualified agreement for holding the Wisconsin elections today.  Yet this is a bit extreme but typical of the reaction on the left.  

There are many problems with the left's reaction. First, keep in mind what Democrat Presidential frontrunner Joe Biden stated:

“There’s a lot of things that can be done; that’s for the Wisconsin courts and folks to decide,” former Vice President Joe Biden said last Thursday in a virtual press briefing, in which he insisted that in-person and mail-in voting could both be done safely—even though he considers the possibility of a national convention in the state to be a potential risk to public health.

While election officials need to make sure that no voters are disenfranchised during the COVID-19 crisis, they also need to make sure that the integrity of the election is still protected.  The expected and understandable increase in mail voting will present unique challenges, as mail voting is uniquely susceptible to disenfranchising voters through fraud and mistake.  After describing some specific examples of fraud through ballot harvesting, former RNLA Ed Meese Award Winner Hans von Spakovsky and Christian Adams wrote today: