Page 4
Ninth Circuit Rejects Challenge to State’s Election Laws
By a MetNews Staff Writer
The Ninth U.S. Circuit Court of Appeals held yesterday that the complaint by a fair-election advocacy group and several congressional candidates who lost elections in 2020 failed to adequately allege that the state’s election laws and regulations violate the Equal Protection or Due Process clauses of the Fourteenth Amendment.
The court held that the complaint—which is largely focused on the expansion of mail-in-ballot procedures and what it cites as a dilution in the voting power of in-person voters due to possible fraud—fails as it does not adequately allege that any disproportionate weight is given to some voters over others and asserts only statistically insignificant irregularities that do not amount to a fundamentally unfair process.
The lawsuit was filed on Jan. 4, 2021, by Election Integrity Project of California, Inc. and James P. Bradley, Mark Reed, Buzz Patterson, Mike Cargile, and Ronda Kennedy, each of whom was an unsuccessful candidate for a U.S. congressional seat. It asserts claims against Secretary of State Shirley Weber, Attorney General Rob Bonta, and the registrars of voters in 15 counties, including Los Angeles, in which alleged irregularities occurred.
The suit seeks a court order declaring nearly two dozen election administration statutes and regulations to be unconstitutional and an audit of all ballots and voting machines used in and after the November 2020 general election.
District Court Judge Andre Birotte Jr. of the Central District of California granted the defendants’ motion to dismiss the complaint with prejudice and judgment in favor of the defendants was entered on Aug. 15, 2023.
Circuit Judge Kim McLane Wardlaw wrote the opinion affirming the judgment, saying:
“The constitutional safeguards we are bound to apply in this case are clear. State and local officials may not unduly burden the right to vote….Elections wholly lacking in integrity cannot stand. Based on the allegations of the complaint, California’s election laws and regulations and Defendant Counties’ practices more than satisfy these constitutional mandates.”
Circuit Judges Michelle T. Friedland and Jennifer Sung joined in the opinion.
Voting Regulations
Wardlaw noted that “California has long permitted voters to cast their ballots by mail” but acknowledges that legislation passed in the wake of the COVID-19 pandemic expanded the practice by requiring, rather than allowing, counties to automatically send a vote-by-mail (“VBM”) ballot to all active, registered votes in advance of an election. In 2021, Election Code §3000.5 made this automatic process permanent.
Under this new scheme, registered voters may only vote in person if they first surrender their VBM ballot or an elections official verifies that it has not already been returned. If those requirements are not met, an in-person voter may only cast a provisional ballot.
Election officials are required to confirm the voter’s signature on the outside of the return envelope containing the ballot, either manually or through the use of signature verification technology. Election rules also instruct officials how to read and interpret the markings on the ballot and will only accept a voter’s mark as a vote when it is “clear.”
The plaintiffs (collectively referred to in the opinion as “EIPCa”) allege that these, and other regulations, have diminished the value of in-person votes, and the votes made in certain counties following these regulations, by inadvertently counting some invalid VBM ballots in violation of the Equal Protection and Due Process clauses.
The complaint also points to alleged “serious irregularities” with voter rolls and says “[d]espite several elections marred by lack of citizen oversight and policies and procedures that created massive opportunities for both error and fraud, California has provided no meaningful access to the VBM ballots and envelopes.”
Equal Protection
Wardlaw explained that courts must first assess the extent and nature of the burden on a voter’s right to equal protection under the law, and balance that against the validity and magnitude of the state’s interest in maintaining the challenged procedures. If a law imposes only reasonable, non-discriminatory restrictions on the right to vote, the state’s regulatory interests in a voting procedure are generally sufficient to justify the rule.
She noted that the complaint does not assert that any election practices incorporate suspect racial classifications which would trigger heightened scrutiny and that there are no allegations that “any specific candidate, issue, party, or other cognizable class of voters has disproportionately benefitted from or suffered injury as a result of the invalid ballots that it alleges officials have mistakenly counted in recent elections.”
Turning to the character and magnitude of the injury asserted, she said:
“We find no well-pleaded allegation in EIPCa’s complaint that any of the laws or practices EIPCa challenges actually burdens anyone’s right to vote….EIPCa does not allege that the State or the Defendant Counties have created any obstacles to any of the named plaintiffs (or any other voter) from registering to vote, receiving a ballot, understanding the ballot, or casting the ballot….EIPCa claims something different: it contends that California has so unburdened the right to vote by mail that, ‘in some cases,’ officials have mistakenly counted invalid mail-in ballots, uniquely ‘diluting’ the voting power of those who choose to cast their ballots in person or who vote in certain counties.”
Unpersuaded that this burden qualifies as a dilution, the jurist reasoned:
“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.”
She added:
“Basic mathematical principles dictate that EIPCa’s novel theory of ‘vote dilution’ fails as a matter of law. Assuming that some invalid VBM ballots have been mistakenly counted as EIPCa alleges, any diminishment in voting power that resulted was distributed across all votes equally. That’s because any ballot—whether valid or invalid—will always dilute the electoral power of all other votes in the electoral unit equally, regardless of the voting method a voter chooses to utilize.”
Other Allegations
The suit also alleges that the election regulatory scheme purportedly allows VBM voters additional time to vote after in-person polling closes, that the voter signature verification process creates an uneven application of the rules, and that election officials have arbitrarily failed to maintain accurate voter rolls.
Wardlaw cited the 2000 U.S. Supreme Court decision in Bush v. Gore as the governing case in this area; the decision provides that state election rules may not be so lacking in uniformity or safeguards that they facilitate or otherwise cause the wholly arbitrary treatment of ballots by elections officials.
Finding no violation of this principle, the judge pointed out that “any voter in California can choose whether to vote by mail or in person, undermining any assertion that the election rules themselves arbitrarily treat voters unequally” and “California’s signature verification rules are far more comprehensive and detailed, and no less uniform, than signature verification rules we previously have upheld under the Equal Protection Clause.”
She continued:
“We also reject EIPCa’s contention that elections officials’ failure to maintain accurate voter rolls reflects arbitrary and unequal treatment of in-person voters or voters in certain counties….EIPCa does not allege that officials have failed to maintain accurate voter rolls disproportionately in particular locations, or for registrants of particular political affiliations, races or ethnicities, or any other cognizable characteristic….Without more, the complaint does not plausibly demonstrate that California’s alleged failure to purge voter rolls has resulted in ‘unequal evaluation of ballots’ or otherwise violated the ‘minimum requirement for nonarbitrary treatment of voters.’ ”
Due Process
Wardlaw said that election irregularities which are so pervasive that they undermine the value of the ballot violate the fundamental fairness promised by the Due Process clause. Finding that the allegations in the complaint “would establish nothing more than the potential for irregularity” she said:
“EIPCa alleges a handful of instances in which ballots were, in the opinion of EIPCa’s observers, ‘left unsecured.’….But EIPCa does not allege that any ballots were improperly taken, retained, or otherwise tampered with. EIPCa also describes polling locations in which lay observers were permitted to observe ballot processing and vote counting proceedings but could not stand close enough to elections workers to be able to hear or see everything that transpired during vote processing….Such allegations fail to plausibly ‘bring into question the fundamental fairness’ of the elections EIPCa challenges….”
She added:
“[T]he total number of invalid ballots that the SAC plausibly alleges to have been counted in California elections since 2012 is so exceedingly minute as to have no measurable impact on the fundamental fairness or integrity of California’s elections….EIPCa alleges that 974 invalid ballots of unspecified types and from unspecified locations, and an unknown additional number of invalid mail-in ballots, have inadvertently been counted across a decade of California elections in which tens of millions of ballots were cast.”
She concluded that “[b]ecause EIPCa’s complaint amounts to no more than a recitation of ‘garden variety’ election irregularities, we find no error in the district court’s dismissal of EIPCa’s due process claim.”
The case is Election Integrity Project California, Inc. v. Weber, 23-55726.
Copyright 2024, Metropolitan News Company