A U.S. appeals court on Aug. 15 turned away a challenge to California’s vote-by-mail laws.
Even though some invalid ballots may be counted in California under the state’s system, that does not meet the burden to show in-person votes were diluted, a three-judge panel of the U.S. Court of Appeals for the Ninth Circuit said.
The ruling addressed a case filed by the Election Integrity Project California (EIPCa) and other plaintiffs who appealed a ruling from a district court.
“Assuming that California officials have inadvertently counted some invalid [vote-by-mail] ballots in the past, the effect that counting such ballots had on the relative voting power of all votes was the same, regardless of voting method or geography,” U.S. Circuit Judge Kim McLane Wardlaw wrote in the unanimous decision.
“A vote dilution claim requires a showing of disproportionate voting power for some voters over others, and EIPCa has not made—and cannot make—that showing based on the facts alleged,” she wrote.
Under U.S. Supreme Court precedent, vote dilution refers to votes carrying equal weight. Some voting systems, such as a Georgia county’s system that took tallied votes and selected officials using a majority of “county unit votes,” have been struck down by the courts.
“The crux of a vote dilution claim is inequality of voting power—not diminishment of voting power per se. After all, dilution of voting power, in an absolute sense, occurs any time the total number of votes increases in an election. Vote dilution in the legal sense occurs only when disproportionate weight is given to some votes over others within the same electoral unit,” the appeals court ruling stated.
While plaintiffs could have emerged victorious if they showed that a disproportionate number of invalid ballots were counted in favor of a particular candidate or party, the plaintiffs did not do that, the judges said.
U.S. Circuit Judges Michelle Friedland and Jennifer Sung joined Wardlaw in the decision.
All voters in California receive a ballot by mail. They can then choose to vote with the ballot or vote in person.
The plaintiffs said the laws governing the mail ballot system have led to an unconstitutional dilution of votes cast by people in-person, according to the lawsuit first filed in January 2021.
“Practices that promote the casting of illegal or unreliable ballots or fail to contain basic minimum guarantees against such conduct can violate the Fourteenth Amendment by leading to the diminution in value of validly cast ballots,” the latest version of the complaint stated. “Defendants have violated the Due Process Clause by implementing laws, regulations, and procedures that diminish the value of in-person voters, including EIPCa’s observers and plaintiffs in their respective counties.”
The original complaint requested decertification of the 2020 election. The latest version asked for an audit of all vote-by-mail ballots from that contest.
U.S. District Judge Andre Birotte Jr. dismissed the case in 2023, finding in part that even if invalid vote-by-mail ballots were counted, they amounted to “garden variety problems,” not significant issues as required by court precedent.
The appeals court judges agreed.
To show a violation of due process rights outlined in the U.S. Constitution’s Fourteenth Amendment, one needs to show massive disenfranchisement or complete lack of integrity, the Ninth Circuit’s ruling said, citing previous rulings.
“Although EIPCa alleges that it has thousands of incident reports documenting ‘a vast number’ of election irregularities, it offers limited factual content, and none of the incidents EIPCa does describe ’transcend ... garden variety problems,'” Wardlaw wrote.
EIPCa did not respond to a request for comment. Inquiries to the offices of the California secretary of state and California attorney general were not returned.
The challengers could ask the full appeals court to consider the case. Another option is requesting a review by the U.S. Supreme Court.
