The Ninth Circuit Court of Appeals ruled on August 15 that California’s election laws do not violate either the Due Process or Equal Protection clauses of the Fourteenth Amendment. The case, initiated by the Election Integrity Project of California, Inc. (EIPCa) and ten unsuccessful 2020 candidates for Congress found plaintiffs failed to state plausible claims of constitutional violations in the administration of California’s elections.

The decision affirmed the ruling of the District Court of the Central District of California, which had dismissed the challenge to the validity of California’s Secretary of State Shirley Weber’s certification of the November 2020 election results and for failure to state a valid claim. The plaintiffs sought a court order to decertify California’s general election results. They claimed that mail-in voting diluted the power of those who vote in person, but they failed to prove that “disproportionate weight” was given to some voters over others. They also alleged that there were “statistically significant irregularities that caused a “fundamentally unfair process” and that “certain counties…inadvertently count(ed) some invalid vote-by-mail ballots.”

EIPCa’s website explains that it is a “California non-profit public benefit corporation committed to defending through education, research, and advocacy the civil rights of U.S. citizens to fully participate in the election process under Federal and state laws.” Their lawsuit claimed that “evidence will expose election corruption.” It did not. The Ninth Circuit ruled that EIPCa could not “make that showing based on the facts” and that the complaint “fails to plausibly support a cognizable vote dilution claim.”

The case came to the Ninth Circuit from an appeal to the opinion by Andre Birotte, Presiding District Judge for the United States District Court for the Central District of California. It was sent to a Ninth Circuit panel composed of Circuit Judge Kim McLane Wardlaw, who wrote the opinion, as well as Circuit Judges Michelle T. Friedland and Jennifer Sung. Citing Bush v. Gore, 531 U.S. 98 (2000) the panel found that the State’s election rules and the practices of county officials that enforced them, did not violate any law and it “satisfied the rudimentary requirements of equal treatment and fundamental fairness.”

“Plaintiffs failed to plausibly demonstrate the scale of massive disenfranchisement, or complete lack of integrity, necessary to state a claim under the Due Process Clause,” the opinion said. In addition, they determined that the “district court did not abuse its discretion by denying plaintiffs a further opportunity to amend their complaint.”

Wardlaw’s opinion began with a description of the journey that EIPCa took through the California courts. The original complaint was amended several times to add two more county officials to the original 13, and to call for a special master who would “oversee the administration of California’s elections.” It then recapped California’s history of permitting absentee mail-in voting in 1922. After the COVID pandemic, the State legislature passed a bill that permanently permitted mail-in voting. In-person voting was, of course, still allowed, but prospective voters and poll workers had to prove that no previous vote had been cast. Poll workers also had to determine that ballot signatures match the signature of the voter’s registration. If the signatures don’t match voters are given an opportunity to elections to explain the discrepancies.

Wardlaw then reviewed the law regarding the district court’s authority to dismiss a case. The Ninth Circuit found no error because it found “no cognizable legal theory” in support of the plaintiff’s claims. Next, she clarified how the U.S. Supreme Court’s decision in Bush v. Gore applies to EIPCa’s case. The court explained that Bush v. Gore only requires “some assurance” that election rules and practices satisfy “the rudimentary requirements of equal treatment and fundamental fairness.” They concluded that California election law meets these factors.

Plaintiffs also argued that mail-in voters get “extra time” to vote after the polls close. This was also untrue because mail-in ballots are only counted “if they are completed and postmarked on or before the close of polls on election day.” In addition, EIPCa could not prove that the State lacks “sufficiently uniform and specific rules concerning (vote-by-mail or VBM) ballot signatures. Nor was there any “plausible basis” to charges about flawed voter signature verification processes or about the varying speeds of signature checking in different counties.

EIPCa also questioned the counties’ vote-counting rules to no avail. The opinion found them “more than sufficiently detailed and uniform to pass muster under the Equal Protection Clause.” California has uniform standards for votes cast in person or by machine. The non-profit group’s charges that different counties had different ways of determining accurate voting rolls were also found erroneous.

EIPCa’s final contention was that California voting laws violate the due process clause of the Fourteenth Amendment. Wardlaw wrote, “…this claim fails as well” because precedent says, “… a showing of mere “garden variety election irregularities” is insufficient to state a due process violation.” The opinion said that according to precedents, “The allegations of the complaint fail to plausibly demonstrate the scale of “massive disenfranchisement…or complete lack of integrity…necessary to state a (Due Process) claim.”

The Ninth Circuit affirmed earlier court rulings for another reason. EIPCa alleged in its appellate brief that nearly 124,000 ineligible vote-by-mail ballots were counted. Wardlaw said remarks to this effect “grossly misstate the allegations of the complaint and will not be credited.” In contrast, the court quoted directly from the complaint, which alleged, “124,000 more votes were counted in the 2020 election than registrants with voting histories for that election.” “In other words,” wrote the court, “124,000 people voted for the first time in California in 2020…This assertion does not remotely amount to an allegation that 124,000 ineligible… ballots, or… 124,000 invalid mail-in ballots were cast.”

Wardlaw concluded, “In sum, EIPCa’s allegations are a far cry from the showing required to plausibly demonstrate irregularities calling into question the fundamental fairness and integrity of California’s elections. She also said, “Counsel for EIPCa is advised to review Federal Rule of Appellate Procedure 28 and our corresponding Circuit Rules, which require parties to present accurate and reliable support for their claims on appeal. The opinion’s final words return to Bush v. Gore, which said, “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.”

Sadly, this case is all too reminiscent of another 2020 case that caused millions of Americans to distrust America’s democracy and the institutions and people who do so much to protect it. It can only be hoped that it does not happen again in 2024.