FOR PUBLICATION

UNITED STATES COURT OF APPEALS

FOR THE NINTH CIRCUIT

ELECTION INTEGRITY PROJECT 

CALIFORNIA, INC.; JAMES P. 

BRADLEY; MARK REED; BUZZ 

PATTERSON; MIKE CARGILE; 

RONDA KENNEDY, 

Plaintiffs-Appellants, 

 v. 

SHIRLEY WEBER, California 

Secretary of State; ROB BONTA, 

California Attorney General; 

SHANNON BUSHEY; FRANCISCO 

DIAZ; TIM DUPUIS; KRISTIN 

CONNELLY; JAMES A. KUS; 

DEAN C. LOGAN; GINA 

MARTINEZ; BOB PAGE; 

REBECCA SPENCER; HANG 

NGUYEN; MICHAEL JIMENEZ; 

TRICIA WEBBER; MICHELLE 

ASCENCION; ELIANA CANO; 

AIME ESPINOZA, 

Defendants-Appellees.

No. 23-55726 

D.C. No. 

2:21-cv-00032-

AB-MAA 

OPINION
2 ELECTION INTEGRITY PROJECT CA, INC. V. WEBER

Appeal from the United States District Court

for the Central District of California

Andre Birotte, Jr., District Judge, Presiding 

Argued and Submitted February 5, 2024 

Pasadena, California

Filed August 15, 2024 

Before: Kim McLane Wardlaw, Michelle T. Friedland, and 

Jennifer Sung, Circuit Judges. 

Opinion by Judge Wardlaw 

SUMMARY*

Elections

The panel affirmed the district court’s dismissal for 

failure to state a claim of a lawsuit brought by Election 

Integrity Project California, Inc., and 10 former political 

candidates challenging the California Secretary of State’s 

certification of the results of the November 2020 general 

election and seeking to declare unconstitutional California’s 

vote-by-mail election system.

The panel rejected plaintiffs’ claim that state and county 

officials impermissibly diluted the voting power of in-person 

voters and voters of certain counties by inadvertently 

* This summary constitutes no part of the opinion of the court. It has 

been prepared by court staff for the convenience of the reader.
ELECTION INTEGRITY PROJECT CA, INC. V. WEBER 3

counting some invalid vote-by-mail ballots. A vote dilution 

claim requires a showing of disproportionate voting power 

for some voters over others, and plaintiffs have not made—

and could not make—that showing based on the facts 

alleged. 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.

The panel rejected plaintiffs’ claim that California laws 

and regulations governing the wide expanse of California’s 

election administration system, and defendant counties’ 

practices under these rules, violate the Equal Protection 

Clause by failing to adhere to the minimum requirement for 

nonarbitrary treatment of voters. Citing Bush v. Gore, 531 

U.S. 98 (2000) (per curiam), the panel held that California’s 

election rules and county officials’ practices pursuant to 

those rules satisfied the rudimentary requirements of equal 

treatment and fundamental fairness.

The panel rejected plaintiffs’ claim that alleged 

irregularities in California’s elections from 2020 through the 

present violate their due process rights. The allegations of 

the complaint failed to plausibly demonstrate the scale of 

massive disenfranchisement, or complete lack of integrity, 

necessary to state a claim under the Due Process Clause.

Finally, the panel held that the district court did not abuse 

its discretion by denying plaintiffs a further opportunity to 

amend their complaint.
4 ELECTION INTEGRITY PROJECT CA, INC. V. WEBER

COUNSEL

Mariah Gondeiro (argued), Gondeiro Law PC, San Jose, 

California; Julianne E. Fleischer, Advocates For Faith and 

Freedom, Murrieta, California; for Plaintiffs-Appellants.

Meghan Strong (argued) and John D. Echeverria, Deputy 

State Attorneys General; Anthony R. Hakl, Supervising 

Deputy Attorney General; Thomas S. Patterson, Senior 

Assistant Attorney General; Rob Bonta, Attorney General of 

California; California Department of Justice, San Francisco, 

California; Mary E. Hanna-Weir (argued), Deputy County 

Counsel, Tony Lopresti, County Counsel, ,Douglas M. 

Press, Kim H. Hara, and Nicholas Defiesta, Office of the 

County Counsel, County of Santa Clara, San Jose, 

California; Joseph W. Ellinwood, Deputy County Counsel, 

County Counsel's Association of California, Sacramento, 

California; Robert P. Parrish, Deputy County Counsel, Lisa 

A. Travis County Counsel and Janice M. Snyder Assistant 

County Counsel Office of the County Counsel, Sacramento, 

California; Raymond S. Lara, Deputy County Counsel, 

Donna Ziegler, County Counsel, Office of the County 

Counsel, County of Alameda, Oakland, California; Rebecca 

Hooley, Assistant County Counsel, Thomas L. Geiger, 

County Counsel, Office of the Contra Costa County 

Counsel, Martinez, California; Kyle R. Roberson, Deputy 

County Counsel, Daniel C. Cederborg County Counsel, 

Office of the County Counsel, County of Fresno, Fresno, 

California; Eva W. Chu, Senior Deputy County Counsel, 

Dawyn R. Harrison, County Counsel, Los Angeles Office of 

the County Counsel, Los Angeles, California; Marina S. 

Pantchenko, Deputy County Counsel, Leslie J. Girard, 

County Counsel, Monterey County Counsel, Salinas, 

California; Rebecca S. Leeds, Senior Deputy County 
ELECTION INTEGRITY PROJECT CA, INC. V. WEBER 5

Counsel, Leon J. Page, County Counsel, Orange County 

Counsel's Office, Santa Ana, California; Laura L. Feingold, 

Principal Assistant County Counsel, Tom Bunton, County 

Counsel, San Bernardino Office of the County Counsel, San 

Bernardino, California; Melissa C. Shaw, Assistant County 

Counsel, Jason M. Heath, County Counsel, Office of the 

Santa Cruz County Counsel, Santa Cruz, California; Jason 

Canger, Deputy County Counsel; Matthew Smith, Assistant 

County Counsel, Tiffany N. North, County Counsel; 

Ventura Office of the County Counsel, Ventura, California; 

Marshall S. Fontes, Chief Deputy County Counsel, Margo 

A. Raison, County Counsel, Office of the Kern County 

Counsel, Bakersfield, California; Stephanie K. Nelson, 

Deputy County Counsel, Minh Tran County Counsel, Office 

of the Riverside County Counsel, Riverside, California; 

Amanda Uhrhammer, Deputy County Counsel, Barbara 

Thompson, County Counsel, Office of the San Benito 

County Counsel, San Benito, California; Ann Duggan, 

Deputy County Counsel, Rita L. Neal, County Counsel, San 

Luis Obispo Office of the County Counsel, San Luis Obispo, 

California; for Defendants-Appellees.
6 ELECTION INTEGRITY PROJECT CA, INC. V. WEBER

OPINION

WARDLAW, Circuit Judge:

On January 4, 2021, two days before the Vice President 

of the United States was set to preside over a joint session of 

the United States Congress to certify the results of the 2020 

general election, Election Integrity Project California, Inc. 

(“EIPCa”) and 10 candidates who had lost their races for 

political office filed this lawsuit seeking to decertify the 

results of the 2020 election in California due to alleged 

irregularities and to declare unconstitutional California’s 

vote-by-mail election system. After two and a half years of 

litigation, including a previous appeal to this court, the 

district court entered an order dismissing the plaintiffs’ 

claims. The district court concluded that even if all of the 

plaintiffs’ allegations were true, the plaintiffs failed to state 

plausible claims of constitutional violations in the 

administration of California’s elections. We agree, and we 

affirm the district court’s order dismissing the plaintiffs’ 

claims without leave to amend. 

I. BACKGROUND

A. The Lawsuit

On January 4, 2021, plaintiffs (collectively, “EIPCa”), 

filed this lawsuit challenging the California Secretary of 

State’s certification of the results of the November 2020 

general election in California. EIPCa sought a court order 

decertifying the results of the November 2020 general 

election, declaring numerous California election laws and 

regulations unconstitutional, and permitting experts chosen 

by EIPCa to conduct a complete audit of the 2020 election. 

The lawsuit named as defendants the California Secretary of 
ELECTION INTEGRITY PROJECT CA, INC. V. WEBER 7

State and the State Attorney General, along with the 

Registrars of Voters for thirteen counties, all sued in their 

official capacities.1

EIPCa then amended its complaint. The First Amended 

Complaint (“FAC”) added three new plaintiffs to the case, 

each of whom had lost their congressional races in the 

November 2020 general election. The FAC maintained the 

same legal claims, allegations, and relief sought as the 

original complaint, though it no longer included a request for 

a court order decertifying the results of the November 2020 

general election. In its place, the FAC added a request for 

the appointment of a special master to oversee the 

administration of California’s elections. 

The defendants moved to dismiss EIPCa’s claims for 

lack of jurisdiction and for failure to plausibly state a claim 

under Federal Rule of Civil Procedure 12(b)(1) and 12(b)(6). 

The district court granted those motions, concluding that the 

court lacked jurisdiction over EIPCa’s lawsuit. EIPCa 

appealed, and we affirmed in part and vacated in part the 

district court’s order, remanding the case to the district court 

for further proceedings. Election Integrity Project Cal., Inc. 

v. Weber, No. 21-56061, 2022 WL 16647768 (9th Cir. Nov. 

3, 2022).

2 

1 Defendant Registrars of Voters represent Alameda County, Contra 

Costa County, Fresno County, Los Angeles County, Monterey County, 

Orange County, Riverside County, Sacramento County, San Benito 

County, San Bernardino County, Santa Clara County, Santa Cruz 

County, and Ventura County. The Registrars of Voters of Kern County 

and San Luis Obispo County were named as defendants to the lawsuit at 

a later date. 

2 In EIPCa’s previous appeal, we determined that EIPCa satisfies the 

jurisdictional requirements for organizational standing and we declined 
8 ELECTION INTEGRITY PROJECT CA, INC. V. WEBER

Returning to the district court, EIPCa again amended its 

complaint. The Second Amended Complaint (“SAC”), the 

version now before us, was filed on February 21, 2023. The 

SAC identifies as plaintiffs EIPCa and five individuals 

previously listed in the FAC as unsuccessful congressional 

candidates. It also adds two more County Registrars to the 

named defendants. See supra note 1.

In the SAC, EIPCa removed its claims under the 

Elections and Guarantee Clauses of the federal Constitution, 

asserting only violations of the Equal Protection and Due 

Process Clauses of the Fourteenth Amendment. SAC at 

¶¶ 149–67, Election Integrity Project Cal., Inc. v. Weber, 

No. 2:21-cv-00032 (C.D. Cal. Feb. 21, 2023), ECF No. 132. 

It also removed the allegations it made in the first and second 

versions of the complaint related to the use of Dominion and 

Smartmatic voting machines. All other allegations and 

claims in the prior versions of the complaint generally 

remain unchanged in the SAC. 

The SAC alleges that California’s adoption of a 

“universal vote-by-mail” election system—by which 

officials mail ballots to all active, registered voters in 

advance of each election—has caused a systematic erosion 

of voter rights and “widespread election irregularities across 

to reach whether any other plaintiff has standing. Election Integrity 

Project Cal., Inc. v. Weber, No. 21-56061, 2022 WL 16647768, at *2 

(9th Cir. Nov. 3, 2022) (citing Olean Wholesale Grocery Coop., Inc. v. 

Bumble Bee Foods LLC, 31 F.4th 651, 682 n.32 (9th Cir. 2022) (en 

banc)). We also affirmed the district court’s dismissal of the plaintiffs’ 

claims under the Guarantee Clause, which guarantees to the States a 

republican form of government, finding that those claims presented 

nonjusticiable political questions. Id. (citing Rucho v. Common Cause, 

588 U.S. 684, 716–19 (2019), and Murtishaw v. Woodford, 255 F.3d 926, 

961 (9th Cir. 2001)).
 ELECTION INTEGRITY PROJECT CA, INC. V. WEBER 9 

California counties.” Id. ¶¶ 2–3A. EIPCa claims that 

California’s election laws and regulations lack “uniform and 

robust procedures” for maintaining accurate records of 

registered voters (i.e., “voter rolls”), receiving and 

processing ballots, verifying voter signatures on mail-in 

ballots, and accurately counting ballots. Id. ¶¶ 5, 8. It further 

asserts that, due to the State’s lack of uniform and robust 

election administration rules, the Defendant Counties have 

implemented disparate election administration policies and 

practices that are themselves insufficiently robust, leading to 

election irregularities including the counting of some invalid 

ballots. Id. ¶¶ 3C, 3D, 8, 49, 110. 

As a remedy for the claimed constitutional violations, 

EIPCa seeks a court order declaring that nearly two dozen 

California election administration statutes and regulations 

are unconstitutional on their face and as applied; an audit of 

all ballots and voting machines used in all California 

elections since, and including, the November 2020 general 

election; and a court appointed special master to oversee the 

administration of California’s elections. SAC at 39–40. 

The district court held that the SAC’s allegations, even 

if they were true, failed to demonstrate plausible violations 

of the equal protection or due process guarantees of the 

Fourteenth Amendment. Finding that any further 

amendment to the complaint would be futile, the district 

court dismissed EIPCa’s claims with prejudice and entered 

judgment for the defendants. 

EIPCa timely appealed. 

B. Voting by Mail in California

California has long permitted voters to cast their ballots 

by mail. A provision permitting absentee voting was first 
10 ELECTION INTEGRITY PROJECT CA, INC. V. WEBER

added to the California Constitution in 1922. Peterson v. 

City of San Diego, 34 Cal. 3d 225, 228 (1983). In 1978, the 

California Legislature “extended to every registered voter 

the right to vote by absentee ballot, regardless of the reason 

for not traveling to the polling place.” Id. at 229 (citing 1978 

Cal. Stat. ch. 77, § 2, p. 213). 

In 2016, California enacted the Voter’s Choice Act, 

which authorized counties to “opt in” to a pilot, all-mailedballot election system. 2016 Cal. Stat. ch. 832 (codified as 

amended at Cal. Elec. Code § 4005). Counties that opted in 

to the pilot program agreed to automatically mail a vote-bymail (“VBM”) ballot to all active, registered voters in 

advance of every election without requiring voters to request 

a VBM ballot in advance. Voters would then have the option 

to vote by mail for any reason or to vote in person.

In response to the public health challenges posed by the 

COVID-19 pandemic, in 2020 the California Legislature 

passed a bill requiring all counties in California to 

implement the all-mailed-ballot election system for the 2020 

general election. 2020 Cal. Stat. ch. 4 (codified as amended 

at Cal. Elec. Code § 3000.5). After the election, the 

California Legislature made the all-mailed-ballot election 

system permanent for all counties. 2021 Cal. Stat. ch. 312 

(codified at Cal. Elec. Code § 3000.5).

Under the current system, elections officials in each 

county are directed to mail a VBM ballot and return 

envelope to all active, registered voters in advance of each 

election. Cal. Elec. Code § 3000.5. If a registered voter 

chooses to vote using the VBM ballot, they must complete 

the VBM ballot, seal it in the return envelope, sign the 

outside of the return envelope, and timely return it either by 

mail or in person at a polling place, vote center, or designated 
ELECTION INTEGRITY PROJECT CA, INC. V. WEBER 11

VBM ballot drop-off location. Id. §§ 3016.7, 3017(a)(1). 

Voters may authorize another person to mail or drop off their 

completed and sealed ballot on their behalf. Id. 

§ 3017(a)(2). Multiple VBM ballots may be returned in a 

single VBM return envelope, provided that each voter who 

places a ballot in the envelope properly signs the outside of 

the envelope and elections officials are able to identify each 

voter and verify each voter’s signature. Cal. Code Regs. 

(“CCR”) tit. 2, § 20991(b)(10). When elections officials 

receive a VBM ballot, they must immediately “enter the 

return status of that ballot into the statewide voter 

registration system” to ensure that no other ballots for that 

voter will be counted in the election. CCR tit. 2, § 20990(a); 

see also Cal. Elec. Code § 3019.7. 

If a registered voter chooses to vote in person, they may 

do so only if they first surrender their VBM ballot, or if an 

elections official verifies that the VBM ballot has not already 

been returned and updates the voter’s record to ensure that 

the VBM ballot will not be counted if it is later received by 

elections officials. Cal. Elec. Code § 3015; CCR tit. 2, 

§ 20990(a). If for any reason a voter does not meet the 

criteria to cast a ballot in person—for example, if a voter 

wishes to vote in person but has not yet surrendered their 

VBM ballot—the voter may cast a “provisional ballot,” 

which will be counted only after elections officials verify 

that the voter is validly registered and that no other ballot has 

been or will be counted for the voter in the applicable 

election. Cal. Elec. Code §§ 3016, 14310; CCR tit. 2,

§ 20992.

All in-person voters must cast their ballots, and all VBM 

voters must either return or postmark their ballots, by the 

close of the polls on election day. Cal. Elec. Code 

§§ 3020(a), 14212. But see id. § 14401 (voters who remain 
12 ELECTION INTEGRITY PROJECT CA, INC. V. WEBER

in line at a polling location or a VBM ballot drop-off site 

when polls close may stay in line and cast or return their 

ballot after polls close). 

A VBM ballot is valid only if elections officials confirm 

that the voter’s signature on the outside of the return 

envelope matches the voter’s signature(s) on file with the 

elections office. Cal. Elec. Code § 3019(a)(1), (c)(2). An 

“exact match is not required for an elections official to 

determine that a voter’s signature is valid.” Id. 

§ 3019(a)(2)(B). Officials must adhere to a statutory 

presumption that the signature on the return envelope is the 

voter’s signature, id. § 3019(a)(2)(A), and a signature will 

be rejected only if at least two elections officials “each find 

beyond a reasonable doubt that the signature differs in 

multiple, significant, and obvious respects from all 

signatures in the voter’s registration record,” id. 

§ 3019(c)(2). 

Elections officials are permitted to compare the signature 

on the VBM return envelope with the signature(s) on file for 

the voter either manually or with signature verification 

technology. Cal. Elec. Code § 3019(a)(2)(G); CCR tit. 2, 

§ 20961. In either case, any signature that is flagged as not 

matching the signature(s) on file for the voter must be 

reviewed manually by at least two elections officials before 

the signature can be rejected. Cal. Elec. Code 

§ 3019(a)(2)(G); CCR tit. 2, § 20961. When verifying voter 

signatures, whether manually or with the aid of a machine, 

officials “shall not review or consider a voter’s party 

preference, race, or ethnicity.” Cal. Elec. Code

§ 3019(a)(2)(D). Officials may consider, but are not limited 

to considering, a variety of signature characteristics provided 

in state regulations when determining whether signatures 
ELECTION INTEGRITY PROJECT CA, INC. V. WEBER 13

match. Id. § 3019(a)(2)(E); CCR tit. 2, § 20960(f).3 Before 

rejecting a signature, officials must also consider a list of 

potential explanations for discrepancies between signatures, 

including the possibility of “variation in signature style over 

time and the haste with which a signature is written.” Cal. 

Elec. Code § 3019(a)(2)(C).4

If the signature on the VBM return envelope is rejected, 

or if the voter fails to sign the outside of the VBM return 

envelope, elections officials must promptly inform the voter 

and provide the voter an opportunity to cure the nonconforming ballot by timely signing and returning a voter 

signature verification form. See Cal. Elec. Code 

§ 3019(d)(1)(A), (e)(1)(A). If the voter completes the form 

and elections officials conclude that that the voter’s 

3 Characteristics that may be considered include “the slant of the 

signature, letter formation, and whether the signature is printed or . . . in 

cursive,” Cal. Elec. Code § 3019(a)(2)(E), as well as “[s]ize, proportions, 

or scale,” “[i]ndividual characteristics, such as how the ‘t’s’ are crossed, 

‘i’s’ are dotted, or loops are made on the letters f, g, j, y, or z,” “[s]pacing 

between the letters,” “[l]ine direction,” “[l]etter formations,” the 

“[p]roportion or ratio of the letters in the signature,” “[i]nitial strokes and 

connecting strokes,” “[s]imilar endings such as an abrupt end, a long tail, 

or loop back around,” the “[s]peed of the writing,” the “[p]resence or 

absence of pen lifts,” and whether the name is spelled correctly, CCR tit. 

2, § 20960(f). 

4 Officials must also consider that “[e]vidence of trembling or shaking in 

a signature could be health-related or the result of aging,” “[t]he voter 

may have used a variation of their full legal name,” “[t]he voter’s 

signature style may have changed over time,” “[a] signature in the 

voter’s registration file may have been written with a[n] . . . electronic 

signature tool that may result in a thick or fuzzy quality,” and “[t]he 

surface of the location where the signature was made may have been 

hard, soft, uneven, or unstable.” CCR tit. 2, § 20960(g).
14 ELECTION INTEGRITY PROJECT CA, INC. V. WEBER

signature on the form matches the signature(s) on file for the 

voter, the voter’s VBM ballot may be processed as usual. Id. 

California election rules also instruct officials how to 

read and interpret the markings that voters make on their 

ballots. See CCR tit. 2, § 20282; Cal. Elec. Code §§ 15342, 

15342.5. These rules apply to “all ballots and votes 

regardless of the vote tabulation method used.” CCR tit. 2,

§ 20282; see id. §§ 20283, 20284. Officials are instructed to 

accept a voter’s mark as a vote “when it is clear that [the 

mark] represents the voter’s choice and is the technique 

consistently used by the voter to indicate their selections.” 

CCR tit. 2, § 20282(c). “Such marks may include, but are 

not limited to, properly filled-in voting position targets, 

checkmarks, X’s, circles, arrows, or any other clear 

indication of the voter’s choice, such as the word ‘yes’ next 

to a candidate’s name or a voting position target for a ballot 

measure.” Id. § 20282(c)(1). “Conversely, a mark crossed 

out by the voter, or the word ‘no’ next to a candidate’s name 

or a voting position target for a ballot measure shall not be 

considered to be a valid vote but will, instead, be deemed an 

indication that the voter did not choose to cast a vote for that 

candidate or measure.” Id. § 20282(c)(2). A voter’s mark 

will be rejected only if “it is impossible to determine” what 

the voter intended. Id. § 20282(b). “A vote for any 

candidate or ballot measure shall not be rejected solely 

because the voter failed to follow instructions for marking 

the ballot.” Id.5

5 If a voter marks “more choices than there are offices to be filled or 

measures that may prevail” for a particular contest—i.e., what is known 

as an overvote—“the vote shall not be counted for that contest, but shall 

be counted in all other contests in which there is no overvote and the 

voter’s choice can be clearly determined.” CCR tit. 2, § 20282(e). If a 
ELECTION INTEGRITY PROJECT CA, INC. V. WEBER 15

Officials are also directed to count “[d]amaged, torn or 

otherwise non-processable ballot[s]” by making a nondamaged, duplicate copy of the ballot that “exactly reflect[s] 

the voter’s choices,” enabling the ballot to be processed as 

usual. Id. §§ 20991(b)(2), 20282(a); Cal. Elec. Code 

§§ 15154(b)(1), 15210. Duplicated ballots must be clearly 

labeled as such. Cal. Elec. Code § 15210.

II. STANDARD OF REVIEW

We review a district court’s order granting a motion to 

dismiss de novo, Thompson v. Paul, 547 F.3d 1055, 1058 

(9th Cir. 2008), which means we consider the matter anew 

without deference to the lower court’s decision, United 

States v. Silverman, 861 F.2d 571, 576 (9th Cir. 1988). We 

may affirm on any ground supported in the record. 

Thompson, 547 F.3d at 1058–59.

We will affirm the grant of a defendant’s motion to 

dismiss if the plaintiff’s well-pleaded allegations, taken as 

true, fail to plausibly show a legal violation. Put another 

way, we will affirm the dismissal of a claim if there is “no 

cognizable legal theory” in support of the plaintiff’s claim or 

“an absence of sufficient facts alleged to support a 

cognizable legal theory.” Navarro v. Block, 250 F.3d 729, 

732 (9th Cir. 2001) (citing Balistreri v. Pacifica Police 

Dep’t, 901 F.2d 696, 699 (9th Cir. 1988)). If the allegations 

of the complaint “are ‘merely consistent with’ a defendant’s 

liability,” Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009) 

(quoting Bell Atlantic Corp. v. Twombly, 550 U.S. 544, 557 

(2007)), or are “more likely explained by 

voter marks “fewer choices than there are offices to be filled or measures 

that may prevail,” what is known as an undervote, “the vote choice(s) for 

all otherwise properly marked candidates or measures shall be counted.” 

Id. § 20282(f). 
16 ELECTION INTEGRITY PROJECT CA, INC. V. WEBER

lawful . . . behavior,” id. at 680, the complaint will fall short 

of plausibly alleging a legal violation. 

In adjudicating a motion to dismiss, we are required to 

assume the truth of the complaint’s “well-pleaded” 

allegations. Id. at 679. Conclusory statements, unreasonable 

inferences, and “legal conclusion[s] couched as . . . factual 

allegation[s],” are not well-pleaded. Id. (quoting Twombly, 

550 U.S. at 555). Such “bald allegations” will not be 

credited. Id. at 681. 

III. DISCUSSION

EIPCa advances multiple theories of liability under the 

Equal Protection and Due Process Clauses of the Fourteenth 

Amendment. First, EIPCa contends that the defendants have 

impermissibly “diluted” the voting power of in-person 

voters and voters in certain counties by inadvertently 

counting some invalid VBM ballots. Second, EIPCa claims 

that California’s election rules lack sufficient specificity and 

uniformity to protect voters from arbitrary and unequal 

treatment. Third, and finally, EIPCa argues that alleged 

irregularities in California’s elections from 2020 through the 

present violate their due process rights. We address each of 

these arguments in turn. We conclude, like the district court, 

that the complaint fails to plausibly allege a constitutional 

violation under any of these three theories. 

A. The Fundamental Right to Vote 

We begin with EIPCa’s claim that the defendants have 

“diluted” the voting power of in-person voters and voters of 

certain counties by failing to adequately police ballots cast 

by mail. As we explain below, EIPCa’s vote dilution claim 

fails as a matter of law because the allegations in the 

complaint fail to state a plausible claim that any one vote in 
ELECTION INTEGRITY PROJECT CA, INC. V. WEBER 17

California has been impermissibly over- or under-weighted 

relative to any other. Assuming that California officials have 

inadvertently counted some invalid VBM 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. 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. Its theory of vote 

dilution is simply not plausible. 

1. Framework of Analysis

The right to vote is “preservative of all rights,” Yick Wo 

v. Hopkins, 118 U.S. 356, 370 (1886), and is of “the most 

fundamental significance under our constitutional 

structure,” Burdick v. Takushi, 504 U.S. 428, 433 (1992) 

(quoting Ill. Bd. of Elections v. Socialist Workers Party, 440 

U.S. 173, 184 (1979)). A state law or practice that unduly 

burdens or restricts that fundamental right violates the Equal 

Protection Clause of the Fourteenth Amendment. See 

Bullock v. Carter, 405 U.S. 134, 140–41 (1972). 

But not all election rules or practices impose 

constitutionally suspect burdens on the right to vote. 

Anderson v. Celebrezze, 460 U.S. 780, 788 (1983). Under 

our federal Constitution, “States retain the power to regulate 

their own elections,” Burdick, 504 U.S. at 433, and states 

have long “enacted comprehensive and sometimes complex 

election codes,” each of which “inevitably affects—at least 

to some degree—the individual’s right to vote,” Anderson, 

460 U.S. at 788. Because “there must be a substantial 

regulation of elections if they are to be fair and honest and if 

some sort of order, rather than chaos, is to accompany the 

democratic processes,” Burdick, 504 U.S. at 433 (quoting 
18 ELECTION INTEGRITY PROJECT CA, INC. V. WEBER

Storer v. Brown, 415 U.S. 724, 730 (1974)), the Supreme 

Court has developed a “flexible standard” for assessing 

constitutional challenges to election rules, id. at 434. That 

standard has come to be known as the “Anderson/Burdick 

framework,” named after the two Supreme Court decisions 

that elucidated it—Anderson v. Celebrezze, 460 U.S. 780 

(1983), and Burdick v. Takushi, 504 U.S. 428 (1992). This 

flexible standard requires courts to balance the nature and 

extent of the alleged burden on the right to vote against the 

State’s interest in maintaining its chosen system of election 

administration. Ariz. Democratic Party v. Hobbs, 18 F.4th 

1179, 1187 (9th Cir. 2021).

In Anderson, the Supreme Court invalidated an Ohio 

statute that imposed an earlier filing deadline and other 

special requirements on independent candidates for 

President—but not on the two major party candidates—to 

get their names printed on the ballot for the general election.6 

460 U.S. at 782, 805–06. “Rely[ing] . . . on the analysis in a 

number of [its] prior election cases resting on the Equal 

Protection Clause of the Fourteenth Amendment,” id. at 786 

n.7, the Court first assessed “the extent and nature” of the 

burden on voters’ First and Fourteenth Amendment rights 

imposed by Ohio’s rule, id. at 786 (quoting Bullock, 405 

U.S. at 143). The Court found that the early filing deadline 

6 The case was brought by, among others, John B. Anderson, a 

Republican Party member who held more moderate views than the 1980 

Republican Party presidential nominee, Ronald W. Reagan, and who 

sought to enter the presidential race as an Independent. Anderson had 

obtained the requisite number of signatures on the nominating petition 

under Ohio law to secure a place on the ballot, but because of the earlier 

filing deadline, the Ohio Secretary of State refused to accept his petition, 

thereby keeping him off. Anderson v. Celebrezze, 460 U.S. 780, 782–83 

(1983).
ELECTION INTEGRITY PROJECT CA, INC. V. WEBER 19

had a “substantial” and discriminatory impact on 

“independent-minded voters” by forcing independent thirdparty candidates to solidify their candidacy long before those 

of the major party nominees, thereby limiting the choices 

available to independent voters. Id. at 790–95. The Court 

next examined the validity and magnitude of the State’s 

interest in maintaining its discriminatory early filing 

deadline. See id. at 796. The Court agreed with Ohio that 

fostering informed and educated voters is an “important and 

legitimate interest,” but it rejected the view that such an 

interest was “served at all by [Ohio’s] requirement.” Id. at 

796, 798. It found “no merit in the State’s [alternative] claim 

that the early filing deadline serve[d] the interest of treating 

all candidates alike,” and it found that the deadline was “not 

precisely drawn to protect the parties from ‘intraparty 

feuding,’ whatever legitimacy that state goal may have in a 

Presidential election.” Id. at 799, 805. Concluding that the 

burdens imposed on voters’ “freedom of choice and freedom 

of association . . . unquestionably outweigh the State’s 

minimal interest in imposing a March deadline” for 

independent candidates, but not on the two major party 

candidates, the Court invalidated Ohio’s rule as violating the 

First and Fourteenth Amendments. Id. at 806.

The Court reaffirmed Anderson’s “flexible standard” a 

decade later as the “appropriate standard for evaluating a 

claim that a state law burdens the right to vote.” Burdick,

504 U.S. at 434, 438; see id. at 432 (rejecting “the erroneous 

assumption that a law that imposes any burden upon the right 

to vote must be subject to strict scrutiny”). The Court 

explained that the standard requires us to first consider “the 

character and magnitude of the asserted injury” to voters’ 

rights, before weighing that injury “against ‘the precise 

interests put forward by the State as justifications for the 
20 ELECTION INTEGRITY PROJECT CA, INC. V. WEBER

burden imposed by its rule.’” Id. at 434 (quoting Anderson, 

460 U.S. at 789). If a plaintiff shows a “severe” burden on 

the right to vote, courts may uphold the challenged law or 

practice only if the State can show that it is “narrowly drawn 

to advance a state interest of compelling importance.” Id.

(quoting Norman v. Reed, 502 U.S. 279, 289 (1992)). By 

contrast, laws that impose lesser burdens on the right to vote 

“trigger less exacting review.” Mecinas v. Hobbs, 30 F.4th 

890, 904 (9th Cir. 2022) (quoting Timmons v. Twin Cities 

Area New Party, 520 U.S. 351, 358 (1997)), cert. denied, 

143 S. Ct. 525 (2022). Indeed, if a law “imposes only 

‘reasonable, nondiscriminatory restrictions’ upon” voters’ 

rights, “‘the State’s important regulatory interests are 

generally sufficient to justify’ the restrictions.” Burdick, 504 

U.S. at 434 (quoting Anderson, 460 U.S. at 788).

Applying that standard, the Burdick Court upheld 

Hawaii’s prohibition on write-in voting for primary and 

general elections against a challenge that it unduly burdened 

voters’ ability to cast ballots for candidates of their choosing 

and the freedoms of association and expression. See id. at 

430, 436–37. The Court concluded that, because Hawaii’s 

election system “provides for easy access” to candidates for 

placement on the ballot in the first place, “any burden 

imposed by Hawaii’s” rule prohibiting write-ins on “voters’ 

rights to make free choices and to associate politically 

through the vote” was “a very limited one,” at best. Id. at 

436–39. Because the burden on voters’ rights was only 

“slight,” the State was not required to “establish a 

compelling interest to tip the constitutional scales in its 

direction.” Id. at 439. The Court found that the two interests 

put forward by the State—avoiding “unrestrained 

factionalism at the general election” and guarding against so-
ELECTION INTEGRITY PROJECT CA, INC. V. WEBER 21

called “party-raiding”7 in primary elections—were both 

“legitimate” interests reasonably advanced by the State’s 

generally applicable rule. Id. at 439–40 (quotation marks 

omitted). 

Applying Anderson and Burdick in the decades since 

those cases were decided, the Supreme Court and our court 

“have repeatedly upheld as ‘not severe’” regulations 

impacting the right to vote “that are generally applicable, 

even-handed, politically neutral, and . . . protect the 

reliability and integrity of the election process.” Dudum v. 

Arntz, 640 F.3d 1098, 1106 (9th Cir. 2011) (alteration in 

original) (quoting Rubin v. City of Santa Monica, 308 F.3d 

1008, 1014 (9th Cir. 2002)); see, e.g., Crawford v. Marion 

Cnty. Election Bd., 553 U.S. 181, 191, 203 (2008) (plurality 

opinion) (concluding that Ohio’s “legitimate state interests” 

in election modernization, preventing voter fraud, and 

safeguarding voter confidence were “sufficient” to justify 

the “limited burden on voters’ rights” imposed by “a neutral,

nondiscriminatory” voter identification law) (quoting 

Burdick, 504 U.S. at 434, 439); id. at 209 (Scalia, J., 

concurring in the judgment) (finding Ohio’s interests 

“sufficient to sustain th[e] minimal burden” imposed by the 

State’s “universally applicable” and “eminently reasonable” 

law); Wash. State Grange v. Wash. State Republican Party, 

552 U.S. 442, 444, 458 (2008) (concluding that 

Washington’s primary system, which identified candidates 

on the ballot “by their self-designated ‘party preference,’” 

did “not impose any severe burden on . . . associational 

7 “Party raiding is generally defined as ‘the organized switching of blocs 

of voters from one party to another in order to manipulate the outcome 

of the other party’s primary election.’” Burdick v. Takushi, 504 U.S. 

428, 439 (1992) (quoting Anderson, 460 U.S. at 788 n.9).
22 ELECTION INTEGRITY PROJECT CA, INC. V. WEBER

rights” and was “easily” justified by the State’s “asserted 

interest in providing voters with relevant information about 

the candidates on the ballot”). As the Supreme Court has 

long explained and these decisions emphasize, “a State’s 

important regulatory interests will usually be enough to 

justify reasonable, nondiscriminatory restrictions” on the 

right to vote. Timmons, 520 U.S. at 358 (quotation marks

omitted).

2. Character and Magnitude of the Asserted Injury

Applying the Anderson/Burdick framework here, we 

first identify “the character and magnitude” of the injury to 

voters’ rights asserted by EIPCa in its complaint.8 Burdick, 

504 U.S. at 434 (quoting Anderson, 460 U.S. at 789); see 

also Short v. Brown, 893 F.3d 671, 676 (9th Cir. 2018). 

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. Short, 893 F.3d at 

677. 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 

8 EIPCa suggests that dismissal is inappropriate because this case 

requires further development of the record before its claims may be 

evaluated under the Anderson/Burdick framework. We disagree. We 

routinely conduct the Anderson/Burdick analysis at the motion to dismiss 

stage. See, e.g., Clark v. Weber, 54 F.4th 590, 593–94 (9th Cir. 2022) 

(conducting an Anderson/Burdick analysis at the motion to dismiss stage 

and affirming dismissal); Tedards v. Ducey, 951 F.3d 1041, 1068 (9th 

Cir. 2020) (same); Rodriguez v. Newsom, 974 F.3d 998, 1011 (9th Cir. 

2020) (same), cert. denied, 141 S. Ct. 2754 (2021). As we explain below, 

dismissal of EIPCa’s claim brought under the Anderson/Burdick 

framework is required because EIPCa has not plausibly alleged a 

cognizable burden on the right to vote. 
ELECTION INTEGRITY PROJECT CA, INC. V. WEBER 23

ballot. Cf., e.g., Crawford, 553 U.S. at 197–200 (considering 

whether a voter ID law posed an obstacle to voters’ ability 

to register for, receive, and cast a 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. 

Opening Brief (“Op. Br.”) at 16, 20–21, Election Integrity 

Project Cal., Inc. v. Weber, No. 23-55726 (9th Cir. Sept. 29, 

2023), ECF No. 16; see SAC at ¶¶ 151–52, 163–64. 

Although EIPCa stylizes the burden on the right to vote 

as “vote dilution,” EIPCa’s complaint fails to plausibly 

support a cognizable vote dilution claim. As the Supreme 

Court recently explained in Rucho v. Common Cause, 588 

U.S. 684 (2019), “‘vote dilution’ in the one-person, one-vote 

cases refers to the idea that each vote must carry equal 

weight.” Id. at 709. That principle, inherent in the Equal 

Protection Clause, requires that “each representative” in a 

political body “be accountable to (approximately) the same 

number of constituents,” so that no group of voters retains 

an outsized edge in deciding the course of policymaking or 

representation relative to others in the same electoral unit. 

Id. 

Two foundational cases—Gray v. Sanders, 372 U.S. 368 

(1963), and Reynolds v. Sims, 377 U.S. 533 (1964)—

demonstrate the principle. In Gray, the Court invalidated 

Georgia’s “‘county unit’ vote-counting system, a sort of 

county-based electoral college that selected statewide 

officials using a majority of ‘county unit’ votes.” Short, 893 

F.3d at 678 (quoting Gray, 372 U.S. at 370–72). Under that 

system, Georgia allocated county unit votes “to each county 

out of proportion to population, thereby ‘weight[ing] the 
24 ELECTION INTEGRITY PROJECT CA, INC. V. WEBER

rural vote more heavily than the urban vote and . . . some 

small rural counties heavier than other larger rural 

counties.’” Id. (alterations in original) (quoting Gray, 372 

U.S. at 379). The Court recognized that the system gave 

“one person . . . twice or 10 times the voting power of 

another person in a statewide election merely because he 

lives in a rural area or because he lives in the smallest rural 

county[.]” Gray, 372 U.S. at 379. The Court held that, by 

giving some votes greater weight than others, Georgia’s 

system “contravene[d] the principles of both voter and 

representational equality.” Evenwel v. Abbott, 578 U.S. 54, 

70 (2016) (citing Gray, 372 U.S. at 371–72, and Reynolds, 

377 U.S. at 575). 

The Court reached the same conclusion in Reynolds, 

striking down a plan for apportionment of seats in the 

Alabama legislature that would have weighted votes from 

rural counties more heavily than votes from urban counties 

by carving the state into legislative districts that covered 

significantly different numbers of constituents. 377 U.S. at 

555. The Court reasoned:

The right to vote freely for the candidate of 

one’s choice is of the essence of a democratic 

society, and any restrictions on that right 

strike at the heart of representative 

government. And the right of suffrage can be 

denied by a debasement or dilution of the 

weight of a citizen’s vote just as effectively 

as by wholly prohibiting the free exercise of 

the franchise.

Id. And the Court quoted at length from Justice Douglas’s 

dissent in South v. Peters:
ELECTION INTEGRITY PROJECT CA, INC. V. WEBER 25

There is more to the right to vote than the 

right to mark a piece of paper and drop it in a 

box or the right to pull a lever in a voting 

booth. The right to vote includes the right to 

have the ballot counted. It also includes the 

right to have the vote counted at full value 

without dilution or discount. That federally 

protected right suffers substantial dilution 

where a favored group has full voting 

strength and the groups not in favor have their 

votes discounted.

Id. at 555 n.29 (cleaned up) (quoting South v. Peters, 339 

U.S. 276, 279 (1950) (Douglas, J., dissenting)).

In Moore v. Ogilvie, the Court extended the principles 

articulated in the legislative apportionment cases to “[a]ll 

procedures used by a State” that are “an integral part of the 

election process.” 394 U.S. 814, 818 (1969). The plaintiffs 

in Moore, “independent candidates for the offices of electors 

of President and Vice President of the United States from 

Illinois,” challenged an Illinois rule requiring a minimum of 

25,000 signatures, including 200 from each of at least 50 of 

the State’s counties, to nominate a candidate for the office of 

elector. Id. at 815. Because “93.4% of the State’s registered 

voters reside[d] in the 49 most populous counties, and only 

6.6% [were] resident in the remaining 53 counties,” the 

Court recognized that “[u]nder this Illinois law the electorate 

in 49 of the counties which contain 93.4% of the registered 

voters may not form a new political party and place its 

candidates on the ballot,” while just “25,000 of the 

remaining 6.6% of registered voters properly distributed 

among the 53 remaining counties may form a new party to 

elect candidates to office.” Id. at 816, 819. Such an 
26 ELECTION INTEGRITY PROJECT CA, INC. V. WEBER

arrangement, the Court wrote, “discriminates against the 

residents of the populous counties of the State in favor of 

rural sections” in “an integral part of [Illinois’s] elective 

system,” violating the “one man, one vote basis of our 

representative government.” Id. at 818–19. 

As the foundational cases demonstrate, all qualified 

voters have the right to vote and to have their vote counted 

equally with other individual qualified voters in the same 

electoral unit. 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. Short, 893 F.3d at 678. 

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.9 The notion that invalid VBM ballots standing 

9 Consider a simple illustration. If 100 votes were counted in one 

election in a hypothetical County A and 105 votes were counted in the 

next County A election, five of which were invalid and should not have 

been counted, the vote share of each ballot counted in County A, 

including the vote share of the invalid ballots, would diminish from 

1/100 (1.0%) to 1/105 (0.95%). The same would hold true if 105 valid

ballots and zero invalid ballots were counted in the second election. 

Despite the inadvertent counting of the invalid ballots in the first 

hypothetical, all votes in the County retained “the same mathematical 
ELECTION INTEGRITY PROJECT CA, INC. V. WEBER 27

alone have an unequal impact on only certain voters, causing 

their votes to “carry less weight” relative to all others, simply 

defies the mathematical reality.10 Op. Br. at 20. 

Of course, a disproportionate number of invalid ballots 

counted in favor of one particular candidate, issue, party, or 

protected class of voters could raise heightened 

constitutional concerns. See Short, 893 F.3d at 678–79 

(explaining that uneven burdens on the right to vote and 

classifications drawn based on suspect statuses trigger 

heightened scrutiny). EIPCa does not allege that any of the 

laws or practices it challenges rely on or incorporate suspect 

classifications, such as those drawn on the basis of race, 

ethnicity, or national origin. See McLaughlin v. Florida, 379 

U.S. 184, 192 (1964). EIPCa also does not contend that “inperson voters,” “residents of a county,” or “voters who cast 

weight” as all others (0.95%). Dudum v. Arntz, 640 F.3d 1098, 1112 (9th 

Cir. 2011). The same principle would apply in an election for a statewide 

race, even if all of the invalid ballots for the statewide race were counted 

in only one county.

10 EIPCa suggests that we should recognize a valid vote dilution claim 

where dilution in voting power, even if equally distributed, is the result 

of fraud or mistake. We reject such an approach, which would serve 

only as an end-run around our well-established due process doctrine for 

analyzing the fundamental fairness and integrity of elections. See infra 

Section III.C. Moreover, the approach proposed by EIPCa would appear 

to be limitless: if every allegation of a mistakenly counted ballot were 

sufficient to state a vote dilution claim, “it would transform every 

violation of state election law . . . into a potential federal equalprotection claim requiring scrutiny of the government’s interest in failing 

to do more to stop the illegal activity.” Bognet v. Sec’y of Pennsylvania, 

980 F.3d 336, 355 (3d Cir. 2020) (quoting Donald J. Trump for Pres., 

Inc. v. Boockvar, 493 F. Supp. 3d 331, 391 (W.D. Pa. 2020)), judgment 

vacated as moot sub nom. Bognet v. Degraffenreid, 141 S. Ct. 2508 

(2021). We decline to adopt such a limitless theory for which we find 

no binding or persuasive support.
28 ELECTION INTEGRITY PROJECT CA, INC. V. WEBER

valid ballots” are protected groups whose classification 

triggers heightened scrutiny. See Short, 893 F.3d at 679 

(“County of residence is not a suspect classification.”). Nor 

does EIPCa allege 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.11 Without more, the complaint fails to 

plausibly demonstrate that the voting power of any group of 

voters in California is unequally diluted any time an invalid 

VBM ballot is inadvertently counted. 

* * *

In Short v. Brown, we affirmed a district court’s refusal 

to preliminarily enjoin the Voter’s Choice Act—the 2016 

11 EIPCa alleges that “minority voters . . . have historically relied upon 

in-person voting to a greater degree than other groups,” suggesting that 

any harm to in-person voters also inures disproportionately to “minority 

voters.” SAC at ¶ 141. We have already determined, however, that inperson voters are not specifically and disproportionately impacted by the 

counting of invalid ballots. Thus, this passing allegation fails to support 

a plausible showing of disparate impact on the basis of race, ethnicity, or 

national origin.

EIPCa appears to allege that some counties count more invalid VBM 

ballots than others, and that this means the counties that count more 

invalid ballots are diluting the votes of valid ballots cast in other 

counties. Without a factual basis on which to conclude that invalid VBM 

ballots confer a disproportionate benefit or disadvantage on any one 

group of voter over any other, including residents of particular counties, 

we asked counsel for EIPCa at oral argument whether California has any 

apportionment structure or election system under which residents of a 

county would stand to gain relative to residents of other counties by 

simply obtaining a higher number of absolute ballots cast in their county 

compared to other counties. EIPCa identified no such structure or 

system in California, and we are aware of none. 
ELECTION INTEGRITY PROJECT CA, INC. V. WEBER 29

statute which first authorized fourteen California counties to 

opt in to the all-mailed-ballot election system. 893 F.3d at 

674–75. The plaintiffs in Short argued that the Act unduly 

burdened the right to vote for voters outside of the fourteen 

pilot counties by making it easier for voters within those 

counties to vote, while maintaining the status quo for those 

outside of the counties. Id. at 677–78. Applying the 

Anderson/Burdick framework, we concluded that 

California’s all-mailed-ballot election system “does not 

burden anyone’s right to vote.” Id. at 677. “Instead,” we 

found that the Voter’s Choice Act made “it easier for some 

voters to cast their ballots by mail, something that California 

voters already can do.” Id. Finding no cognizable burden 

on the right to vote alleged in the plaintiffs’ complaint, we 

concluded that the plaintiffs were unlikely to succeed on the 

merits and affirmed the district court’s denial of preliminary 

relief. 

Our decision in Short underscored the commonsense 

principle that generally applicable, even handed, and 

politically neutral election regulations that tend to make it 

easier to vote generally do not impose a cognizable burden 

on the right to vote. See id. at 677–78; accord Hobbs, 18 

F.4th at 1195–96 (“The 2019 law made it easier for a 

different category of voters to effect their vote, but we fail to 

see how that law raises constitutional concerns here.”) 

(citing Short, 893 F.3d at 678).12 The same principle applies 

12 EIPCa misguidedly argues that our decision in Short is distinguishable 

because it involved a motion for preliminary injunction as opposed to a 

motion to dismiss and, “unlike the standard on a motion for preliminary 

injunction, this Court can only consider the allegations in Appellants’ 

complaint.” Op. Br. at 15. We do not find Short distinguishable on this 

basis. Our reliance on Short is limited to Short’s analysis of the merits 

of the plaintiffs’ claims in that case (not the other factors considered in 
30 ELECTION INTEGRITY PROJECT CA, INC. V. WEBER

with equal force here. Elections officials in California, as in 

all other jurisdictions, may at times inadvertently or 

mistakenly count invalid ballots. See Weber v. Shelley, 347 

F.3d 1101, 1106 (9th Cir. 2003) (“The unfortunate reality is 

that the possibility of electoral fraud [or mistake] can never 

be completely eliminated, no matter which type of ballot is 

used.”). 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.” Baten v. 

McMaster, 967 F.3d 345, 355 (4th Cir. 2020) (as 

amended).13 The burden on the right to vote that EIPCa 

asserts is thus no burden at all. 

adjudicating a preliminary injunction), and our court’s merits analysis in 

Short, like our analysis here, did not rely on anything more than the 

plaintiffs’ complaint and the text of the law at issue in that case. See 

Short, 893 F.3d at 677–79. 

13 To our knowledge, every court to have considered a “vote dilution” 

claim analogous to the one raised by EIPCa in this case has rejected the 

claim. See Bognet, 980 F.3d at 355–57 (collecting cases); Powell v. 

Power, 436 F.2d 84, 88 (2d Cir. 1970); Pettengill v. Putnam Cnty. R-1 

Sch. Dist., 472 F.2d 121, 122 (8th Cir. 1973); Paher v. Cegavske, 457 F. 

Supp. 3d 919, 929–30 (D. Nev. 2020); Donald J. Trump for Pres., Inc., 

493 F. Supp. 3d at 418–19 (collecting additional cases); Wood v. 

Raffensperger, 501 F. Supp. 3d 1310, 1322 (N.D. Ga. 2020) (same). 

Many of these decisions held that plaintiffs raising equal protection 

challenges to election rules on the basis that some invalid ballots have 

been or might be counted failed to show a concrete and/or particularized 

injury for Article III standing purposes. We have already held that the 

requirements of Article III are satisfied in this case based on EIPCa’s 

organizational standing. See Election Integrity Project Cal., Inc., 2022 

WL 16647768, at *2. But whether evaluated in the context of Article III 

or on the merits, the relevant principle is the same: the mere fact that 

some invalid ballots have been inadvertently counted, without more, 
 ELECTION INTEGRITY PROJECT CA, INC. V. WEBER 31

B. Bush v. Gore

EIPCa also asserts that around two-dozen California 

laws and regulations governing the wide expanse of 

California’s election administration system, and Defendant 

Counties’ practices under these rules, violate the Equal 

Protection Clause by failing to adhere to the “minimum 

requirement for nonarbitrary treatment of voters,” citing 

Bush v. Gore, 531 U.S. 98, 105 (2000) (per curiam). 

Specifically, EIPCa contends that (1) California arbitrarily 

and unfairly grants VBM voters additional time to vote after 

polls close; (2) California’s statewide standards and 

protocols for verifying voter signatures, determining the 

intent of the voter based on ballot markings, and remaking 

damaged ballots are insufficiently detailed, resulting in 

arbitrary and uneven application of the rules; and (3) state 

and local officials have arbitrarily failed to maintain accurate 

voter rolls. We address each of these theories in turn, finding 

none to state a plausible claim.

In the elections context, the Supreme Court has 

articulated the “minimum requirement” of rationality as an 

“obligation to avoid arbitrary and disparate treatment of the 

members of [the] electorate” by the state.14 Bush, 531 U.S. 

does not suffice to show a distinct harm to any group of voters over any 

other. Under California’s election system, “[e]very qualified person gets 

one vote and each vote is counted equally in determining the final tally.” 

Baten v. McMaster, 967 F.3d 345, 355 (4th Cir. 2020) (as amended).

14 As we have previously explained, a state law or practice that does not 

incorporate suspect classifications or burden a fundamental right 

generally “merit[s] no special scrutiny” under the Equal Protection 

Clause. Short, 893 F.3d at 679 (citing McDonald v. Bd. of Election 

Comm’rs of Chi., 394 U.S. 802, 806–08 (1969)). To the extent a law or 

practice affects similarly situated non-suspect classes differently, it will 

survive equal protection review provided it is “rationally related to a 
32 ELECTION INTEGRITY PROJECT CA, INC. V. WEBER

at 105. To comply with this requirement, state election rules 

and practices may not be so lacking in uniformity or in 

“minimal procedural safeguards” that they facilitate or 

otherwise cause the wholly arbitrary treatment of ballots or 

voters by elections officials. Id. at 105–06, 109. 

In Bush v. Gore, the Court invalidated the Florida 

Supreme Court’s mandated manual recount of the 2000 

presidential election as lacking “sufficient guarantees of 

equal treatment” because the recount order failed to provide 

any standard for elections officials to use when determining 

the intent of voters. Id. at 106–07. The paper punchcard 

ballots utilized in the 2000 presidential election in Florida 

were especially “prone to overvotes, undervotes, ‘hanging 

chads,’ and other mechanical and human errors that may 

[have] thwart[ed] voter intent.” Weber, 347 F.3d at 1106. 

Without a uniform standard to determine the intent of the 

voter, counties in Florida utilized “varying standards to 

determine what was a legal vote,” resulting in recount 

outcomes that were “markedly disproportionate to the 

difference in population between the counties.” Bush, 531 

U.S. at 107. “[A]t least one county changed its evaluative 

legitimate state interest.” City of Cleburne v. Cleburne Living Ctr., 473 

U.S. 432, 440 (1985); see also Mathews v. De Castro, 429 U.S. 181, 185 

(1976) (explaining that ordinary legislative distinctions are “entitled to a 

strong presumption of constitutionality” and will survive rational basis 

review as long as they are not “arbitrary”). We do not decide in this case 

whether the standard applied by the Supreme Court in Bush v. Gore

departed from ordinary rational basis review under the Equal Protection 

Clause because, even assuming Bush applied a heightened standard, we 

find that the well-pleaded allegations of EIPCa’s complaint fail to state 

a claim under a straightforward application of Bush. See Lemons v. 

Bradbury, 538 F.3d 1098, 1105 (9th Cir. 2008) (addressing a claim that 

Oregon lacked sufficiently uniform signature verification rules under 

Bush v. Gore). 
ELECTION INTEGRITY PROJECT CA, INC. V. WEBER 33

standards during the counting process.” Id. at 106 (emphasis 

added). In another county, “three members of the county 

canvassing board applied different standards in defining a 

legal vote” simultaneously. Id. To make matters worse, the 

recount order failed to “specify who would recount the 

ballots.” Id. at 109 (emphasis added). As a result, “[t]he 

county canvassing boards were forced to pull together ad hoc 

teams of judges from various Circuits who had no previous 

training in handling and interpreting ballots.” Id. Due to the 

special potential for over- or under-votes associated with the 

punchcard ballot system, the Court determined that “[t]he 

formulation of uniform rules to determine intent based on 

these recurring circumstances” was both “practicable” and 

“necessary” to ensure equal treatment of voters. Id. at 105–

06. Because the “recount mechanisms implemented in 

response to the decisions of the Florida Supreme Court” 

lacked any such uniform standards or rules, the Court held 

that the recount failed to “satisfy the minimum requirement 

for nonarbitrary treatment of voters necessary to secure the 

fundamental right.” Id. at 105.

Although the Court ordered a drastic remedy in the 

circumstances,15 it emphasized that the standard it applied to 

15 The Supreme Court in Bush v. Gore underscored that the factual 

circumstances in which the case arose were essential to the Court’s 

holding and the remedy it ordered. 531 U.S. 98, 109–10 (2000) (“The 

question before the Court is not whether local entities, in the exercise of 

their expertise, may develop different systems for implementing 

elections. Instead, we are presented with a situation where a state court 

with the power to assure uniformity has ordered a statewide recount with 

minimal procedural safeguards.”); see also Lemons, 538 F.3d at 1106 

(noting that the Bush Court limited its ruling “to the present 

circumstances” of Florida’s 2000 recount) (quoting Bush, 531 U.S. at 

109); see also Rodriguez, 974 F.3d at 1006 (describing the “precedential 

value of Bush [as] limited” by the Court’s express limitation to the facts 
34 ELECTION INTEGRITY PROJECT CA, INC. V. WEBER

Florida’s court-ordered recount was merely the “minimal” 

standard of non-arbitrary state action. Id. at 110; see also id. 

at 105 (“The recount mechanisms . . . do not satisfy the 

minimum requirement for nonarbitrary treatment of 

voters.”). That standard does not require absolute uniformity 

of election rules nor total precision in their formulation. 

State-by-state and intra-state variation in the administration 

of elections is a feature—not a bug—of our federal system. 

See Pub. Integrity All., 836 F.3d at 1028 (emphasizing, in 

rejecting a constitutional challenge to Tucson’s hybrid 

system for city council elections, that “our democratic 

federalism [is] a system that permits states to serve ‘as 

laboratories for experimentation to devise various solutions 

where the best solution is far from clear’”) (quoting Ariz. 

State Legislature v. Ariz. Indep. Redistricting Comm’n, 576 

U.S. 787, 817 (2015)); Short, 893 F.3d at 677, 679 (noting 

that an individual state may have a valid interest in 

“incremental election-system experimentation”); Tashjian v. 

Republican Party of Conn., 479 U.S. 208, 217 (1986) 

(describing the states’ “broad power to prescribe the ‘Times, 

Places and Manner of holding [federal] Elections’”) (quoting 

U.S. Const. Art. I, § 4, cl. 1); Timmons, 520 U.S. at 358 

(describing the equally matched power of the states to 

regulate state elections). The Supreme Court has never 

questioned that “local entities, in the exercise of their 

expertise, may develop different systems for implementing 

elections,” Bush, 531 U.S. at 109, and we have repeatedly 

at hand), cert. denied, 141 S. Ct. 2754 (2021). But the general principle 

that Bush applied—that “the rudimentary requirements of equal 

treatment and fundamental fairness” prohibit states from engaging in 

wholly “arbitrary and disparate treatment” of members of the public—is 

not unique to that case and we do not hesitate to apply it here. 531 U.S. 

at 107, 109.
ELECTION INTEGRITY PROJECT CA, INC. V. WEBER 35

upheld election administration rules that reasonably provide 

for jurisdiction-by-jurisdiction variation, e.g., Short, 893 

F.3d at 674–75 (declining to enjoin the Voter’s Choice Act, 

which allowed a select number of counties to opt in to an allmailed-ballot election system); Weber, 347 F.3d at 1106–07 

(sustaining a county’s decision to implement a touchscreen 

voting system). All that is required is “some assurance” that 

election rules and practices satisfy “the rudimentary 

requirements of equal treatment and fundamental fairness.” 

Bush, 531 U.S. at 109.

California’s election rules, and County Defendants’ 

practices pursuant to those rules, satisfy these “rudimentary 

requirements.” Id. 

1. Extra Time Not Given

EIPCa contends that California’s election rules 

arbitrarily provide VBM voters additional time to vote after 

polls close. To start, we note 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. Moreover, we see no provision in the 

rules themselves allowing VBM voters additional time to 

vote, nor any well-pleaded allegations in EIPCa’s complaint 

that they can. Under the applicable rules, all ballots must be 

completed on or before the close of polls on election day. 

See Cal. Elec. Code §§ 14212, 14401, 3020(a). VBM ballots 

received by elections officials up to 7 days after election day 

may be deemed “timely cast,” but only if they are completed 

and postmarked on or before the close of polls on election 

day. Id. § 3020(b)(1). 

EIPCa speculates that a voter could, hypothetically, 

“backdate” a VBM ballot envelope, mail the ballot after 

election day (or after polls close on election day), “and still 
36 ELECTION INTEGRITY PROJECT CA, INC. V. WEBER

have [the] ballot counted.” Op. Br. at 23. But we may only 

credit EIPCa’s factual allegations. We may not entertain 

“‘imaginary’ cases.” Wash. State Grange, 552 U.S. at 449–

50. EIPCa alleges no instances of voters “backdating” ballot 

envelopes, nor of any such ballot ever being counted. 

Moreover, EIPCa’s hypothetical ignores that a late-mailed 

ballot would be postmarked as mailed after election day and 

would therefore be untimely within the terms of the Election 

Code, irrespective of the voter’s fraudulent or mistaken 

“backdate” on the envelope.16 See Cal. Elec. Code 

§ 3020(b)(1). Such a hypothetical ballot could be counted 

legally only on the off chance the postmark were missing or 

illegible, and even then only if elections officials could not 

obtain any “information . . . from the United States Postal 

Service or the bona fide private mail delivery company to 

indicate the date on which the ballot was mailed.” Cal. Elec. 

Code § 3020(b)(2); see also CCR tit. 2, § 20991(b)(8). 

EIPCa, again, makes no allegation of any such ballot ever 

being cast or counted.

At most, EIPCa alleges that it has recorded unspecified 

instances of elections officials collecting ballots from ballot 

mailboxes after polls closed. SAC at ¶ 133. But there is a 

considerable difference between taking custody of an 

untimely ballot and counting that ballot, and EIPCa has 

16 EIPCa seems to allege in the SAC that the California Secretary of State 

issued guidance directing private mail carriers in California and the 

federal U.S. Postal Service to backdate the postmarks on ballot 

envelopes dropped into mailboxes after election day. See SAC at ¶ 131. 

The district court correctly found this allegation to be implausible, 

speculative, and plainly contradicted by judicially noticeable facts, a 

conclusion which EIPCa has not challenged on appeal. We observe that 

EIPCa has maintained throughout this litigation that it does not assert 

any fraud on the part of state or local officials.
ELECTION INTEGRITY PROJECT CA, INC. V. WEBER 37

made no allegation that any untimely ballot has ever been 

counted. Nor do we find it reasonable to infer that any such 

ballots have been counted based solely on the fact that 

elections officials took custody of ballots after election day. 

See Iqbal, 556 U.S. at 680 (explaining that conduct that is 

“not only compatible with, but indeed [is] more likely 

explained by, lawful . . . behavior” fails to state a claim of 

wrongdoing). 

2. Signature Verification and Voter Intent

EIPCa’s claim that California lacks sufficiently uniform 

and specific rules concerning VBM ballot signatures and 

vote counting likewise lacks a plausible basis in the 

allegations of EIPCa’s complaint.

Although EIPCa relies almost exclusively on the 

Supreme Court’s decision in Bush for support, EIPCa’s 

allegations related to California’s signature verification and 

ballot counting rules lack any remote resemblance to the 

unique facts of Florida’s court-ordered recount considered in 

Bush. EIPCa complains, for example, that elections officials 

are free to initially compare VBM envelope signatures either 

manually or with the assistance of signature verification 

technology. See Cal. Elec. Code § 3019(a)(2)(G); CCR tit. 

2, § 20961. But whether officials review signatures 

manually or with the aid of technology, the uniform standard 

officials must abide by remains the same. Under that 

standard, any signature that is flagged either manually or 

with the aid of technology as possessing “multiple, 

significant, and obvious differing characteristics when 

compared to all signatures in the voter’s registration record” 

must be subjected to the same, second-level, manual 

inspection process. See Cal. Elec. Code § 3019(c)(1); CCR

tit. 2, § 20961. Under that process, a VBM ballot will be set 
38 ELECTION INTEGRITY PROJECT CA, INC. V. WEBER

aside only if two qualified elections officials “each find 

beyond a reasonable doubt that the signature [on the VBM 

ballot return envelope] differs in multiple, significant, and 

obvious respects from all signatures in the voter’s 

registration record.” Cal. Elec. Code § 3019(c)(2). What’s 

more, California’s statutes and regulations provide detailed 

guidance to elections officials on which factors or 

characteristics to consider (or not consider) when comparing 

signatures, see, e.g., id. § 3019(a)(2)(D)–(E); CCR tit. 2,

§ 20960(f), many of which are mandatory, see, e.g., Cal. 

Elec. Code § 3019(a)(2)(C)–(D); CCR tit. 2, § 20960(g). 

Thus, the rules provide a uniform standard for determining 

when a signature must be rejected; a uniform process for 

matching signatures; a designation as to who is authorized to 

verify signatures; detailed and specific considerations for 

elections officials to follow when comparing signatures; and 

multiple, independent layers of review. Such rules and 

guidance are more than sufficient to satisfy the “rudimentary 

requirements of equal treatment and fundamental fairness.” 

Bush, 531 U.S. at 109.

Indeed, 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. See Lemons v. Bradbury, 538 

F.3d 1098, 1104, 1106 (9th Cir. 2008). In Lemons, we 

considered a challenge to Oregon’s policy governing the 

verification of signature samples on referendum petitions. 

See id. at 1100–01. We found that the policy, which directed 

elections officials simply to “[c]ompare the signature on the 

petition and the signature on the voter registration card to 

identify whether the signature is genuine” and to reject 

signatures that “do not match,” was “sufficiently uniform 

and specific to ensure equal treatment of voters.” Id. at 
ELECTION INTEGRITY PROJECT CA, INC. V. WEBER 39

1100–01, 1106. We further found that Oregon’s “signature 

verification process [had] ‘sufficient guarantees of equal 

treatment,’” because “all counties subjected initially rejected 

signatures to a second level of review,” all counties 

compared “petition signatures [with] existing voter 

registration cards,” and “all counties refused to consider 

extrinsic evidence.” Id. at 1106 (quoting Bush, 531 U.S. at 

107). Nothing in EIPCa’s complaint reveals a material 

distinction between this case and Lemons. If anything, the 

rules EIPCa challenges here go above and beyond the policy 

we considered in Lemons.

Nor do EIPCa’s allegations support its contention that 

elections officials plausibly have engaged in arbitrary and 

unequal treatment of voters in implementing the signature 

verification rules described above. EIPCa makes numerous 

allegations that general, unspecified “irregularities” in 

signature verification have occurred in the past, that officials 

have not “meaningfully” verified signatures, and that 

signatures have been verified that, according to EIPCa’s lay 

observers, “did not match.” See, e.g., SAC at ¶ 117, lines 1–

2; id. ¶ 118, p. 28, line 27; id. at 29, lines 12–14; id. ¶ 120, 

p. 29, lines 21–22, 25; id. at 30, lines 1–3; id. ¶ 124, lines 

27–28. Because these allegations are vague, conclusory, and 

establish nothing more than the potential for the counting of 

invalid votes, they do not, even if taken as true, plausibly 

allege the kind of arbitrary treatment that would constitute 

an equal protection violation. 

EIPCa also alleges that, among jurisdictions that have 

opted to utilize signature verification technology, some 

counties have calibrated their signature verification 

machines to be more or less sensitive to variation in 

signatures. E.g., id. ¶ 109. The fact that some counties may 

calibrate their machines to flag more signatures for 
40 ELECTION INTEGRITY PROJECT CA, INC. V. WEBER

secondary review does not reasonably suggest that any 

county has failed to abide by the statewide standard. See 

Cal. Elec. Code § 3019(c)(1). EIPCa does not allege that any 

county has calibrated its machines to a standard below the 

uniform standard for matching signatures imposed by the 

State. 

EIPCa makes a similar allegation that different counties 

review VBM ballot envelope signatures at different speeds, 

with some counties “spending five seconds or less per each 

set of four [signatures]” and others engaging in a “slow” 

review process. SAC at ¶¶ 107, 118; see also id. ¶¶ 120–22, 

125. EIPCa likewise alleges that some counties have set a 

minimum number of “points of comparison” to look at when 

comparing signatures, while others have not. Id. ¶¶ 106–

07, 121. As with the signature verification machines, the 

mere fact that some officials may spend more time looking 

at signatures or may look at a minimum number of the 

characteristics listed in the statewide regulations does not 

reasonably suggest that any other official has failed to adhere 

to the robust standard by which all officials must abide. 

EIPCa asserts that unspecified numbers of VBM ballots 

have been counted in Defendant Counties despite having 

ballot envelope signatures that were missing or that 

displayed a different name than that of the voter. See, e.g., 

id. ¶ 115 (Contra Costa County elections officials in 2020 

allegedly “accepted” one ballot envelope with a signature 

that differed from the voter’s name); id. ¶ 117 (Kern County 

elections officials in 2021 verified an unspecified number of 

“signatures that didn’t have the same name” and “ballots 

with no signature at all”); id. ¶ 118 (Los Angeles County 

officials in 2020 counted an unspecified number of ballots 

whose envelopes were missing voter signatures). But we 

have emphasized that uniform election standards can 
ELECTION INTEGRITY PROJECT CA, INC. V. WEBER 41

produce different results, and we have found that “isolated 

discrepancies” analogous to those alleged by EIPCa are 

insufficient to “demonstrate the absence of a uniform 

standard,” Lemons, 538 F.3d at 1106–07, particularly when 

the plaintiffs fail to allege that any difference observed 

between counties is “markedly disproportionate to [a] 

difference in population,” Bush, 531 U.S. at 107. EIPCa 

alleges that “more” irregularities have occurred in Defendant 

Counties, but the SAC contains no allegations showing that 

any difference in irregularities is “markedly 

disproportionate” relative to population or “statistical[ly]

significan[t]” taking into account the number of voters in the 

Defendant Counties relative to those of other counties in the 

state. Id.; Lemons, 538 F.3d at 1107. Without more, the 

isolated discrepancies EIPCa identifies fail to demonstrate 

arbitrary and unequal treatment of voters in signature 

verification.17

17 EIPCa argues that two decisions not binding on us counsel a different 

outcome: League of Women Voters of Kansas v. Schwab, 525 P.3d 803, 

828 (Kan. Ct. App. 2023), aff’d in part and rev’d in part, 549 P.3d 363 

(Kan. 2024), and Stewart v. Blackwell, 444 F.3d 843 (6th Cir. 2006), 

vacated as moot, 473 F.3d 692 (6th Cir. 2007) (en banc). Both are 

inapposite. League of Women Voters of Kansas involved a state law 

challenge to Kansas’s signature verification statute, which, like the 

recount procedure at issue in Bush, “contain[ed] no standards to 

determine what constitutes a signature match.” 525 P.3d at 828 

(emphasis added). No such facts are present here. In Stewart, the Sixth 

Circuit applied strict scrutiny to a claim that the use of punchcard ballots 

in some counties but not others—the same type of ballot at issue in Bush 

v. Gore—created an impermissible, unequal risk that validly cast ballots 

would not be counted in certain counties. 444 F.3d at 872; see id. at 846, 

859 n.8, 861, 869; cf. Common Cause S. Christian Leadership Conf. of 

Greater L.A. v. Jones, 213 F. Supp. 2d 1106, 1107–10 (C.D. Cal. 2001); 

Black v. McGuffage, 209 F. Supp. 2d 889, 899 (N.D. Ill. 2002). As we 
42 ELECTION INTEGRITY PROJECT CA, INC. V. WEBER

Our conclusion is the same with respect to California’s 

vote counting and ballot duplication rules. By contrast to the 

standardless vote counting order considered in Bush, and far 

surpassing the standard we reviewed in Lemons, California’s 

vote counting rules are more than sufficiently detailed and 

uniform to pass muster under the Equal Protection Clause. 

The State’s vote counting standard applies uniformly to “the 

counting of all ballots and votes regardless of the vote 

tabulation method used, for the initial count . . . and any 

recount.” CCR tit. 2, § 20282; see id. §§ 20283, 20284. It 

provides a comprehensive list of different mark types that 

are to be counted as a vote in favor of or against a candidate 

or voting position. See id. § 20282(c)(1)–(2). And it 

provides a detailed explanation of how to interpret and count 

overvotes and undervotes. See id. § 20282(e)–(f). The 

State’s implementing regulations further set forth uniform 

and specific protocols for remaking ballots, which 

incorporate the same uniform and specific vote counting 

procedures and standards that apply to all other ballots. See 

CCR tit. 2, § 20991(b)(2); Cal. Elec. Code § 15210.

EIPCa’s complaint fails to show that officials acting 

under these rules have counted or remade ballots in an 

arbitrarily unequal manner. The SAC alleges, consistent 

with the applicable rules, that “[s]ome counties use machine 

technology” to aid in vote counting, while others use 

“manual” methods or a “hybrid model.” SAC at ¶ 111. As 

we have already explained, the alternative use of manual and 

machine methods to apply the same, uniform standard does 

not, by itself, reasonably suggest arbitrary treatment of 

ballots. Nor does the fact that “some” of the Defendant 

have already explained, EIPCa has failed to state an analogous claim 

here. 
ELECTION INTEGRITY PROJECT CA, INC. V. WEBER 43

Counties “have only one team verifying the intent of the 

voter whereas [others] have multiple teams,” id. ¶ 112, or 

that officials have counted ballots consistent with the 

uniformly applicable regulations, see id. ¶¶ 114, 122. 

Taken together, EIPCa’s allegations fail to plausibly 

suggest the absence of sufficiently uniform and specific 

standards or an actionable failure by elections officials to 

adhere to those standards. Lemons, 538 F.3d at 1106–07.

3. Maintenance of Voter Rolls

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. See Op. Br. at 23. 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. See also supra Section 

III.A. (explaining that the SAC does not plausibly allege an 

unequal burden on the right to vote caused by the inadvertent 

counting of some invalid VBM ballots). Nor does EIPCa 

contend that California lacks a sufficiently uniform or 

specific standard for maintaining voter rolls.18 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 

18 To the contrary, EIPCa asserts that the National Voter Registration Act 

(“NVRA”) provides the applicable, uniform standard by which 

California elections officials must abide. See SAC at ¶ 51; 52 U.S.C. 

§ 20501 et seq. EIPCa makes the conclusory allegation that California 

has failed to comply with the NVRA, but it has not brought a claim under 

the NVRA despite ample opportunities to amend the complaint. See

SAC at ¶ 52; 52 U.S.C. § 20510(b).
44 ELECTION INTEGRITY PROJECT CA, INC. V. WEBER

“minimum requirement for nonarbitrary treatment of 

voters.” Bush, 531 U.S. at 105–06 (emphasis added). 

* * * 

California’s laws and regulations provide more than 

sufficient “assurance that the rudimentary requirements of 

equal treatment and fundamental fairness are satisfied,” 

Bush, 531 U.S. at 109, and no allegations in EIPCa’s 

complaint plausibly suggest otherwise. 

C. Due Process Clause

EIPCa’s final claim is that election irregularities in 

California have so “systematically den[ied] equality in 

voting” as to violate the Due Process Clause of the 

Fourteenth Amendment. Op. Br. at 29 (quoting Gamza v. 

Aguirre, 619 F.2d 449, 453 (5th Cir. 1980)). This claim fails 

as well.

Election irregularities that are so “pervasive [that they] 

undermine[] the organic processes of the ballot” violate the 

fundamental fairness principles inherent in the Due Process 

Clause of the Fourteenth Amendment. Soules v. Kauaians 

for Nukolii Campaign Comm., 849 F.2d 1176, 1184 (9th Cir. 

1988) (internal quotation marks omitted). “It is hornbook 

law,” however, that a showing of mere “garden variety 

election irregularities” is insufficient to state a due process 

violation. Id. at 1183 (internal quotation marks omitted). 

The “possibility of electoral fraud” or mistake “can never be 

completely eliminated,” and “it is the job of democraticallyelected representatives to weigh the pros and cons of various 

balloting systems” without undue judicial second-guessing. 

Lake v. Fontes, 83 F.4th 1199, 1203–04 (9th Cir. 2023) 

(cleaned up) (quoting Weber, 347 F.3d at 1106–07), cert. 

denied, 144 S. Ct. 1395 (2024); see Dudum, 640 F.3d at 1117 
ELECTION INTEGRITY PROJECT CA, INC. V. WEBER 45

(“There is no perfect election system, and our search for one 

would prove no more successful than a hunt for the mythical 

snark.”). Thus, even errors, irregularities, ex post changes in 

law or procedure, and fraud will not amount to a denial of 

due process if they are of the “garden variety” sort 

reasonably associated with the public administration of 

elections. Bennett v. Yoshina, 140 F.3d 1218, 1226 (9th Cir.)

(upholding the 1996 Hawaiian Convention Vote against Due 

Process Clause and First Amendment challenges), as 

amended on denial of reh’g and reh’g en banc (June 23, 

1998), cert. denied sub nom. Citizens for a Const. 

Convention v. Yoshina, 525 U.S. 1103 (1999). Even garden 

variety election irregularities that “control the outcome of 

the vote or election” do not violate the Due Process Clause. 

Id.

Garden variety irregularities have historically included, 

but are not limited to, allegations of “[m]ere fraud or 

mistake,” id.; “claims of lax security,” Soules, 849 F.2d at 

1184; absentee ballots delivered by persons other than the 

voter, id.; human and/or mechanical error resulting in 

miscounted ballots, Bennett, 140 F.3d at 1226 (citing

Hennings v. Grafton, 523 F.2d 861, 864 (7th Cir. 1975); 

Gold v. Feinberg, 101 F.3d 796, 801–02 (2d Cir. 1996); and 

Bodine v. Elkhart Cnty. Election Bd., 788 F.2d 1270, 1272 

(7th Cir. 1986)); the counting of some votes that were 

illegally cast, id. (citing Pettengill v. Putnam Cnty. R-1 Sch. 

Dist., 472 F.2d 121, 122 (8th Cir. 1973)); and the mistaken 

allowance of non-party member votes in a primary election, 

id. (citing Powell v. Power, 436 F.2d 84, 85–86 (2d Cir. 

1970)). 

By contrast, irregularities that have been found to 

surpass the “garden variety” type have included the 

disenfranchisement of an entire electorate through the failure 
46 ELECTION INTEGRITY PROJECT CA, INC. V. WEBER

to hold a legally required election, see Duncan v. Poythress, 

657 F.2d 691, 703 (5th Cir. Unit B Sept. 1981), cert. granted, 

455 U.S. 937 (1982), dismissing cert. as improvidently 

granted, 459 U.S. 1012; “outrageous racial discrimination” 

resulting in a complete “lack of integrity” in the election, 

Griffin v. Burns, 570 F.2d 1065, 1080 (1st Cir. 1978); and 

knowing efforts by elections officials “to prevent an honest 

count . . . of the votes lawfully cast” in an election, United 

States v. Saylor, 322 U.S. 385, 389 (1944). We find nothing 

akin to such examples of “significant disenfranchisement” in 

EIPCa’s complaint. Bennett, 140 F.3d at 1227. 

The allegations of the complaint fail to plausibly 

demonstrate the scale of “massive disenfranchisement,” 

Bennett, 140 F.3d at 1226–27, or complete lack of integrity, 

Griffin, 570 F.2d at 1080, necessary to state a claim under 

the Due Process Clause. 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.” SAC at ¶¶ 105, 126–27; Bennett, 

140 F.3d at 1226.19

To start, a large portion of EIPCa’s allegations, taken as 

true, would establish nothing more than the potential for 

irregularity. See, e.g., SAC at ¶ 3B (describing the 

“potential exploitation of vulnerable populations”); id. ¶ 8 

(describing the possibility of “potentially ineligible persons” 

19 The mere allegation that EIPCa has received a number of complaints 

related generally to election administration from unspecified individuals 

in unspecified locations at unspecified dates does not by itself provide 

“sufficient factual matter” to “state a claim to relief that is plausible on 

its face.” Iqbal, 556 U.S. at 678 (quoting Twombly, 550 U.S. at 570); 

Twombly, 550 U.S. at 557. 
ELECTION INTEGRITY PROJECT CA, INC. V. WEBER 47

voting); id. ¶ 57 (speculating that “ballots could have 

been . . . removed from the trash, filled out, and counted”); 

id. ¶ 58 (alleging that if so-called “ballot harvesting” 

occurred, it had an “extreme potential for fraud”) (all 

emphases added); see also id. ¶¶ 59, 60, 81, 118, 132.20

As an example, EIPCa alleges a handful of instances in 

which ballots were, in the opinion of EIPCa’s observers, 

“left unsecured.” E.g., id. ¶¶ 6, 116. 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. 

E.g., id. ¶¶ 96–97, 99–104. Such allegations fail to plausibly 

“bring into question the fundamental fairness” of the 

elections EIPCa challenges, Soules, 849 F.2d at 1184, 

plausibly establish that officials “undermine[d] the ‘organic 

processes’ of the ballot,” id. (quoting Hennings, 523 F.2d at 

864), or establish that any election resulted in the 

“significant disenfranchisement” of voters, Bennett, 140 

F.3d at 1227.

EIPCa further alleges that thousands of ineligible 

registrants have incorrectly remained on the voter rolls, 

thousands of VBM ballots have been mailed to incorrect 

addresses or to individuals who were likely ineligible to 

vote, and tens of thousands of duplicate VBM ballots have 

20 We note that the complaint does not allege any fraud on the part of any 

elections officials in California. See Pls.’ Combined Opp’n to Ds’ Mots. 

to Dismiss at 1, 3–4, Election Integrity Project Cal., Inc. v. Weber, No. 

2:21-cv-00032 (C.D. Cal. Apr. 14, 2023), ECF. No. 167 (“Plaintiffs do 

not allege specific elements of fraud.”).
48 ELECTION INTEGRITY PROJECT CA, INC. V. WEBER

been mailed to registered voters. See, e.g., SAC at ¶¶ 50, 64, 

85–88. These allegations undoubtedly describe purported 

errors in the administration of California’s elections. But the 

complaint fails to draw a plausible connection between these 

errors and any “massive disenfranchisement” of voters or 

“pervasive” counting of invalid ballots. Bennett, 140 F.3d at 

1227. To the contrary, the 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, in the 

November 2012 election, 113 people across nine counties 

“appear” to have voted twice. SAC at ¶ 55. It alleges that, 

in 2020, 596 Nevadans voted in California, 180 individuals 

voted in both Nevada and California, 72 individuals whose 

identities appear to be associated with deceased individuals 

voted in California, and 13 voters voted twice in the 2020 

primary election. Id. ¶¶ 85, 136.21 Finally, EIPCa alleges 

that some election observers have reported seeing 

unspecified numbers of VBM ballots “counted” despite 

nonconforming or missing signatures on VBM ballot return 

envelopes. E.g., id. ¶ 110. In sum, 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. 

Nor do allegations that are “not only compatible with, 

but indeed [are] more likely explained by, 

lawful . . . behavior” plausibly state a claim. Iqbal, 556 U.S.

21 EIPCa does not allege the manner by which these votes were cast (i.e., 

in person or by mail), or the counties in which the votes were cast.
ELECTION INTEGRITY PROJECT CA, INC. V. WEBER 49

at 680 (citing Twombly, 550 U.S. at 567). For example, 

EIPCa’s complaint describes instances in which voters were 

permitted to complete provisional ballots in person although 

they had not yet forfeited their VBM ballots or had already 

returned VBM ballots. SAC at ¶¶ 119, 124. These 

allegations are consistent with officials’ adherence to 

California’s provisional ballot rules, which protect against 

double-voting while ensuring that no otherwise eligible 

voter is turned away from the polls. See Cal. Elec. Code 

§ 3015; CCR tit. 2, § 20990(a). Similarly, EIPCa alleges 

that individuals returned VBM ballots on others’ behalf, 

consistent with California’s rules authorizing voters to 

designate a third party to return a ballot. See SAC at ¶ 118, 

p. 28; id. ¶¶ 121, 124; Cal. Elec. Code § 3017(a)(2). EIPCa 

alleges that voter rolls increased, consistent with a growing 

electorate and same-day voter registration. SAC at ¶ 123. It 

further alleges that people with limited voting histories 

voted, consistent with the ordinary practice of democracy. 

Id. ¶ 64. It alleges numerous instances in which elections 

officials counted ballots consistent with the statewide 

election procedures. Id. ¶¶ 6, 114, 122. And it alleges that 

elections officials at times limited observers’ access to 

protect against the spread of disease during the COVID-19 

pandemic, to protect voter privacy, or to stop disruptions to 

proceedings. Id. ¶¶ 95, 97–98, 102, 122. None of these 

allegations plausibly raise an inference of wrongdoing.

Finally, we are limited to reviewing the allegations of the 

complaint as it is written. EIPCa contends in its briefing on 

appeal that it has “allege[d] that nearly 124,000 ineligible 

VBM votes were counted in the 2020 election.” Op. Br. at 

22. Counsel for EIPCa repeated this assertion at oral 

argument. See Oral Argument at 41:20–41:28 (Feb. 5, 

2024), https://perma.cc/ZYN4-D894. These statements 
50 ELECTION INTEGRITY PROJECT CA, INC. V. WEBER

grossly misstate the allegations of the complaint and will not 

be credited. What the complaint in fact alleges is that 

“124,000 more votes were counted in the 2020 election than 

registrants with voting histories for that election.” SAC at 

¶ 137. In other words, 124,000 people voted for the first 

time in California in 2020. Such an assertion does not 

remotely amount to an allegation that 124,000 ineligible 

voters cast ballots, or that 124,000 invalid mail-in ballots 

were cast. The only plausible inference we may draw from 

EIPCa’s allegation is one consistent with the ordinary 

practice of democracy: 124,000 people, accounting for less 

than one percent of all votes cast in California’s 2020 general 

election, voted for the first time in that election.22 See Cal. 

Sec’y State, Secretary of State Padilla Certifies Record 

Setting General Election Results (Dec. 11, 2020) (last visited 

May 2, 2024), https://perma.cc/R8RE-ZY3G (reporting that 

17,785,151 votes were cast in California’s 2020 general 

election); United States v. Corinthian Colls., 655 F.3d 984, 

999 (9th Cir. 2011) (“Pursuant to Federal Rule of Evidence 

201, we may . . . take judicial notice of ‘matters of public 

record,’” provided such facts are not “subject to reasonable 

dispute”) (citations omitted). 

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. See Bennett, 140 F.3d at 1226–27 

(finding allegations that “some” invalid ballots were 

miscounted insufficient to demonstrate “pervasive error that 

22 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. Grant 

v. City of Long Beach, 96 F.4th 1255, 1256 (9th Cir. 2024).
 ELECTION INTEGRITY PROJECT CA, INC. V. WEBER 51

undermines the integrity of the vote”). As we noted in 

Soules, “[e]lections are, regrettably, not always free from 

error. Voting machines malfunction, registrars fail to follow 

instructions, absentee ballots are improperly administered, 

poll workers become over-zealous, and defeated candidates 

are, perhaps understandably, inclined to view these 

multifarious opportunities for human error in a less than 

charitable light.” 849 F.2d at 1184 (quoting Hutchinson v. 

Miller, 797 F.2d 1279, 1286–87 (4th Cir. 1986), cert. denied, 

479 U.S. 1088 (1987)). Because 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. Id. at 1183. 

D. Leave to Amend

EIPCa argues that, even if the district court correctly 

dismissed its complaint, it abused its discretion in denying 

EIPCa a further opportunity to amend the complaint. See 

Allen v. City of Beverly Hills, 911 F.2d 367, 373 (9th Cir. 

1990). A district court does not abuse its discretion in 

denying leave to amend where “any further amendment to 

the complaint would likely prove futile.” Allen, 911 F.2d at 

374 (affirming dismissal and denial of leave to amend 

second amended complaint). A “district court’s discretion 

to deny leave to amend is particularly broad where [the] 

plaintiff has previously amended the complaint.” Ascon 

Props., Inc. v. Mobil Oil Co., 866 F.2d 1149, 1160 (9th Cir. 

1989). 

This is the third complaint filed by EIPCa over the course 

of this lawsuit. EIPCa’s two previously filed complaints 

contained nearly identical operative allegations and claims 

as those we review here. Neither before the district court nor 

on appeal has EIPCa articulated any factual allegation or 
52 ELECTION INTEGRITY PROJECT CA, INC. V. WEBER

legal theory it would advance in a fourth complaint that 

would cure the deficiencies found by the district court or 

articulated here—nor has it explained why any such 

allegations or theories would have been previously 

unavailable to it. See Kendall v. Visa U.S.A., Inc., 518 F.3d 

1042, 1052 (9th Cir. 2008) (“Appellants fail to state what 

additional facts they would plead if given leave to amend, or 

what . . . discovery they would conduct to discover such 

facts.”); Allen, 911 F.2d at 374. For these reasons, we are 

not left with a “definite and firm conviction that the district 

court committed a clear error of judgment” by denying 

EIPCa further leave to amend. Allen, 911 F.2d at 373; see 

also Parents for Priv. v. Barr, 949 F.3d 1210, 1239 (9th Cir. 

2020) (finding no abuse of discretion where amendment 

would not change the fact that plaintiffs’ legal theories are 

not cognizable as a matter of law). 

IV. CONCLUSION

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. A state’s election administration 

standards and practices must “avoid arbitrary and disparate 

treatment of the members of its electorate.” Bush, 531 U.S. 

at 105. 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.23 

23 We note that the federal Constitution is not the sole avenue by which 

those aggrieved by election irregularity, alleged fraud, or other 

wrongdoing may seek redress. Cf. Weber v. Shelley, 347 F.3d 1101, 

1106 (9th Cir. 2003) (explaining that a county’s use of a touchscreen 

voting method did not leave “voters without any protection from fraud, 

or any means of verifying votes, or any way to audit or recount”). The 
ELECTION INTEGRITY PROJECT CA, INC. V. WEBER 53

EIPCa might prefer that California adopt different 

election policies. But “[n]othing in the Constitution, the 

Supreme Court’s controlling precedent, or our case law 

suggests” that we, as unelected federal judges, can or should 

“micromanage a state’s election process.” Short, 893 F.3d 

at 677, 679; New Ga. Project v. Raffensperger, 976 F.3d 

1278, 1284 (11th Cir. 2020) (“[T]he Constitution sets out our 

sphere of decisionmaking, and that sphere does not extend 

to second-guessing and interfering with a State’s reasonable, 

nondiscriminatory election rules.”). Were we to accept 

EIPCa’s legal theories on the record before us, we would 

inevitably find ourselves “thrust into the details of virtually 

every election, tinkering with the state’s election machinery, 

reviewing petitions, registration cards, vote tallies, and 

certificates of election for all manner of error and 

insufficiency under state and federal law.” Powell, 436 F.2d 

at 86. That is not the role that the Constitution or Congress 

has provided for our court. See Weber, 347 F.3d at 1107 & 

n.2 (9th Cir. 2003) (“[I]t is the job of democratically-elected 

representatives to weigh the pros and cons of various 

balloting systems. So long as their choice is reasonable and 

neutral, it is free from judicial second-guessing.”).

AFFIRMED.

Constitution provides only the floor—not the ceiling—of available voter 

protections. See Ariz. Democratic Party v. Hobbs, 18 F.4th 1179, 1195 

(9th Cir. 2021).