California Vote-By-Mail Upheld in Rebuke of ‘Vote Dilution’ Suit

California’s vote-by-mail system doesn’t violate the federal Constitutional rights of in-person voters, even if state election officials occasionally count some invalid mailed ballots, a federal appeals court ruled Thursday.

Improper mail-in ballots don’t illegally dilute in-person votes because minor mistakes by election officials counting some absentee ballots don’t create disproportionate voting power for one group of people over another in the largest state in the country, the US Circuit Court of Appeals for the Ninth Circuit ruled.

“Elections officials in California, as in all other jurisdictions, may at times inadvertently or mistakenly count invalid ballots,” Judge Kim McLane Wardlaw wrote for the unanimous three-judge panel. “But the inadvertent counting of some invalid ballots, without more, does not limit, prevent, or otherwise burden the ability of any voter to cast a lawful ballot consistent with their voting preference, or to have their ballot ‘counted equally in determining the final tally.’”

The ruling stems from a suit that was filed on Jan. 4, 2021, asking the court to decertify the state’s election — a move that if successful would have tipped the election toward Donald Trump.

“Basic mathematical principles dictate that EIPCa’s novel theory of ‘vote dilution’ fails as a matter of law,” 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,” the opinion said.

Dilution claims like those raised in this litigation by the conservative Election Integrity Project California and 10 Republicans who lost their races have been rejected by all courts to consider them, including the Second, Fourth, and Eighth US Court of Appeals circuits.

Judges Michelle T. Friedland and Jennifer Sung also heard the case.

The California Attorney General represented the state defendants. Gondeiro Law PC and Advocates For Faith & Freedom represented the plaintiffs.

The case is Election Integrity Project California, Inc. v. Weber, 9th Cir., No. 23-55726, 8/15/24.