[00:00:00] Speaker 05:
Okay.

[00:00:03] Speaker 05:
Let's see.

[00:00:04] Speaker 05:
Appellants, Ms.

[00:00:05] Speaker 05:
Gondero.

[00:00:15] Speaker 02:
Good morning, Your Honors, and may it please the Court.

[00:00:18] Speaker 02:
My name is Mariah Gondero, and I am an attorney for the appellants.

[00:00:22] Speaker 02:
I would like to reserve five minutes for rebuttal.

[00:00:25] Speaker 02:
Please watch your clock.

[00:00:26] Speaker 02:
Thank you.

[00:00:28] Speaker 02:
This case is about the right to vote and ensuring all votes are counted equally.

[00:00:32] Speaker 02:
This case is not about one election, one party or one candidate.

[00:00:38] Speaker 02:
We do not seek to overturn any election.

[00:00:41] Speaker 02:
This case is about ensuring California's election laws, regulations and practices are uniform, safe and secure.

[00:00:49] Speaker 02:
Appellants are not advocating for extreme measures.

[00:00:52] Speaker 02:
They are advocating for common sense measures that ensure uniformity and that in no way would burden the state of California.

[00:01:03] Speaker 02:
The state's contention that the challenge laws and regulations were uniform and intended to expand the right to vote

[00:01:12] Speaker 02:
is a red herring.

[00:01:14] Speaker 02:
Appellants do not dispute the state's intention in ratifying universal vote by mail.

[00:01:21] Speaker 02:
Appellants do not challenge universal vote by mail.

[00:01:24] Speaker 02:
They challenge the adjudication and review of those ballots, which is not applied consistently across the counties.

[00:01:34] Speaker 02:
As a threshold matter, it is not entirely clear whether the Anderson-Burdick framework applies to appellants' vote dilution claims, but even if it does, appellants do state a claim for relief because they do allege that appellants' laws, regulations, and practices were not uniform across counties.

[00:01:54] Speaker 02:
The Sixth Circuit's decision in Stuart versus Blackwell is instructive.

[00:01:59] Speaker 02:
There, the Sixth Circuit applied strict scrutiny when the plaintiffs alleged that some counties in Ohio use technologies that increase the risk that one person's vote would be diluted.

[00:02:13] Speaker 00:
The Sixth Circuit... Wasn't the issue there that the plaintiffs were worried their votes would not be counted?

[00:02:19] Speaker 00:
And for you, I don't think your clients have any problem with their vote being counted.

[00:02:24] Speaker 00:
So you're worried that some other people might be counted too, I guess.

[00:02:29] Speaker 00:
But that's really not the same as Stuart, is it?

[00:02:33] Speaker 02:
Your Honor, I would argue that that distinction is a distinction without a difference, because whether the irregularities are marred by cancellation or negation, it's a distinction without a difference.

[00:02:44] Speaker 02:
And I think Bush versus Cohn.

[00:02:46] Speaker 00:
But why?

[00:02:47] Speaker 00:
Isn't the core of the right to vote that you actually get to have your vote counted?

[00:02:50] Speaker 00:
So it would seem like there's a much bigger infringement potentially on the right to vote if you can't vote than some possible hypothetical dilution even when you can vote.

[00:03:04] Speaker 02:
Our position, Your Honor, is that vote dilution is the same whether an invalid vote dilutes the power of a valid vote.

[00:03:13] Speaker 02:
I think that Bush versus Gore makes that case, and they rely on cases that involve mal-importionment and state-reimportionment cases where votes were weighted differently.

[00:03:27] Speaker 02:
Even though that this case is unique in that it involves vote cancellation and negation, meaning that the invalid votes negate the power of the valid votes, our position, Your Honor.

[00:03:40] Speaker 05:
Counsel, but what are the invalid votes here?

[00:03:42] Speaker 05:
Aren't you complaining about the method of voting, not asserting that the votes are invalid?

[00:03:51] Speaker 02:
Well, both, Your Honor.

[00:03:52] Speaker 02:
Our position is that the practices are not secure.

[00:03:56] Speaker 02:
And we've also alleged, the Election Integrity Project of California has alleged that there were numerous votes that were not properly adjudicated and counted.

[00:04:08] Speaker 02:
And in some cases, ballots were counted without signatures.

[00:04:12] Speaker 02:
And that was because the procedures were not uniform and secure.

[00:04:18] Speaker 05:
Well, so your second amended complaint alleges that 974 invalid ballots have been counted in California elections since 2012.

[00:04:32] Speaker 05:
Isn't that out of millions and millions of ballots?

[00:04:37] Speaker 05:
And how does that make any difference in the outcome of any election?

[00:04:42] Speaker 02:
The moral position, Your Honor, is that that's not the standard whether it would make a difference in the outcome of an election.

[00:04:49] Speaker 02:
And I think Bush versus Gore is instructive there, because in that case, they didn't even allow the recount to go forward.

[00:04:57] Speaker 02:
There was no evidence that the irregularities would have swayed the vote either way.

[00:05:01] Speaker 02:
The only thing presented to the court was that there was uneven practices before the court.

[00:05:07] Speaker 02:
And so this case is even stronger, because we've now gone through several elections where there have been irregularities.

[00:05:14] Speaker 02:
And we're not just talking about hundreds.

[00:05:17] Speaker 02:
We're talking about thousands of irregularities that have been recounted in the Election Integrity Project of California's records.

[00:05:26] Speaker 02:
And we also have issues with the maintenance of voter rolls, which I will get to.

[00:05:32] Speaker 02:
later.

[00:05:32] Speaker 04:
We have cases, I mean there's a question I think of whether Bush v. Gore even applies outside of the very specific facts of that case and then we have post Bush v. Gore cases saying even assuming it applies we find that the standard of you know sufficient state standards essentially for have been met so can you drill down on that why isn't why aren't the standards that California has imposed here that apply statewide enough

[00:06:00] Speaker 02:
Well, I want to talk about Bush versus Gore because Bush versus Gore does make a statement that county officials do have discretion and the appellees make that note too.

[00:06:14] Speaker 02:
local officials do have discretion.

[00:06:16] Speaker 02:
They have that pursuant to law to run elections.

[00:06:19] Speaker 02:
However, when there is evidence that they are applying practices that disproportionately impact specific voters, whether it's because the votes are not going to be counted or the votes

[00:06:38] Speaker 02:
the election workers are going to count invalid votes, then that raises or that implicates the equal protection clause.

[00:06:47] Speaker 02:
And so my argument would be that this case is like Bush versus Gore because the state of California has no justification for not requiring every single county to apply the same standards when verifying signatures.

[00:07:04] Speaker 02:
this case.

[00:07:05] Speaker 00:
Can I just ask, I'm a little bit confused about your idea that the problem is that different people in different counties are treated differently.

[00:07:12] Speaker 00:
So if it's a statewide election and all the votes are just counted, then everyone is diluted the same regardless of the county, right?

[00:07:23] Speaker 02:
Well, our position, Your Honor, is that that's not

[00:07:26] Speaker 02:
this case is not just a difference between vote by mail ballots and in person ballots because we have the county by county variations.

[00:07:34] Speaker 00:
That's what I'm asking is, let's even assume that there are a few more what you would call fraudulent ballots in some counties than others.

[00:07:42] Speaker 00:
If it's a statewide election and the way that the election is determined is that all of the votes statewide are counted, then

[00:07:50] Speaker 00:
Everyone in the state is diluted by the fraudulent votes all the same, right?

[00:07:54] Speaker 00:
Because you're just counting the votes in the whole state.

[00:07:56] Speaker 00:
Are you focused on some other kind of election where it matters county to county?

[00:08:00] Speaker 00:
I'm just confused about your argument that things vary county to county because I'm not quite sure why that, what kind of election you're thinking of that mattering in.

[00:08:10] Speaker 02:
What would matter, Your Honor, in any election, just like it mattered in Bush versus Gore?

[00:08:15] Speaker 02:
I mean, the court could have made that same holding there.

[00:08:18] Speaker 02:
They could have made the holding that, well, the improper procedures in counties could have affected all voters the same because it was a presidential vote across the entire state.

[00:08:33] Speaker 02:
But that's not what Bush versus Gore

[00:08:35] Speaker 00:
I don't think Bush versus Gore's concern was that someone in one county may be treated differently than the other.

[00:08:40] Speaker 00:
It was that the whole system they were worried was not a regular system.

[00:08:45] Speaker 00:
But your claim seems to be something about comparing counties.

[00:08:51] Speaker 02:
Yes, Your Honor.

[00:08:52] Speaker 02:
Our position would be that that is that is that is similar to Bush versus Gore because our position is that Bush versus Gore was was concerned about the uneven application of procedures across counties.

[00:09:08] Speaker 00:
But the injury wasn't that someone in one county was treated differently than the other, and I think you're claiming.

[00:09:13] Speaker 00:
I think some sort of injury that someone in one county is being treated differently as the other, and I'm trying to understand that.

[00:09:20] Speaker 00:
Can you explain to me

[00:09:21] Speaker 00:
why it matters which county someone lives in for your claim?

[00:09:26] Speaker 02:
It matters, Your Honor, because if county officials, let's say in Los Angeles County, are not properly reviewing signatures and they're counting ballots with invalid signatures or no signatures at all, then those invalid votes are going to dilute the voting power of the in-person voters in that county.

[00:09:51] Speaker 00:
But for what kind of election?

[00:09:53] Speaker 00:
Because if it's a statewide count, then won't they also dilute my vote up in Northern California?

[00:09:59] Speaker 02:
Yes, Your Honor.

[00:10:00] Speaker 02:
That is the argument, whether it's a county election or whether it's a statewide election or a presidential election, just like what occurred in Bush versus Gore.

[00:10:11] Speaker 04:
I want to say, you seem to acknowledge that Bush versus Gore did not

[00:10:16] Speaker 04:
Erase county by county discretion and variation, right?

[00:10:20] Speaker 04:
Didn't say that there could not be.

[00:10:22] Speaker 04:
County discretion in the administration of election, so seems that there's no argument that essentially 100% statewide uniformity is required in the administration of elections.

[00:10:34] Speaker 04:
So then how do you get from some variation is?

[00:10:39] Speaker 04:
Permitted right to the point that this variation goes too far.

[00:10:46] Speaker 02:
I think, Your Honor, other courts have kind of provided that direction for us, and I want to get to that specifically, Your Honor.

[00:10:58] Speaker 02:
I want to first discuss the cases in the Ninth Circuit that are distinguishable.

[00:11:02] Speaker 02:
One, Lemons v. Bradbury.

[00:11:04] Speaker 02:
This Ninth Circuit held that organ standard for verifying signatures were sufficiently uniform and specific to ensure equal treatment of voters.

[00:11:14] Speaker 02:
Specifically, though, on the record,

[00:11:17] Speaker 02:
The court had noted that all counties subjected rejected signatures to a second level of review.

[00:11:23] Speaker 02:
There was no evidence that counties had applied different standards for determining whether to reject a signature.

[00:11:30] Speaker 02:
This case is entirely different because we have evidence that counties are applying different levels of review when reviewing signatures.

[00:11:40] Speaker 02:
For instance, we make the example of Solano County and Placer County.

[00:11:45] Speaker 02:
At least numerous points of comparison, they review rejected signatures at least three times and EIPCA noted that citizens did not report incidents of election workers approving ballots that did not match the signatures on file.

[00:12:03] Speaker 02:
We've also now seen other courts across the county across the country like the Court of Appeals in Kansas.

[00:12:10] Speaker 02:
They recently ruled in a similar situation as like this that

[00:12:15] Speaker 02:
Kansas' statute regarding verifying signatures did not establish sufficient uniformity because there was no requirements for election workers to follow when reviewing signatures.

[00:12:32] Speaker 02:
Appellants allege that these irregularities are the result of California's state laws and regulations.

[00:12:39] Speaker 02:
The appellees will point to numerous guidelines that they have regarding election laws.

[00:12:44] Speaker 02:
But the key thing there is that they're guidelines.

[00:12:48] Speaker 02:
They don't necessarily have the full force of law because they're not requirements.

[00:12:52] Speaker 02:
And we have alleged in our complaint that the counties are applying different practices because those guidelines are guidelines.

[00:13:00] Speaker 02:
They're not requirements.

[00:13:03] Speaker 02:
We also allege that past elections have shown that county registrars implemented varying practices regarding the maintenance of voter rolls.

[00:13:12] Speaker 02:
In the 2020 election, we documented hundreds of Nevadans voting in counties managed by Appellee County registrars.

[00:13:22] Speaker 02:
Almost 124,000 more votes were counted in the 2020 election than registrants with voting records for that

[00:13:35] Speaker 02:
for that election.

[00:13:37] Speaker 02:
So unlike this court's decision and Clark versus Weber and Teddards versus Ducey, this case is different because again, we have alleged that appellants or appellees laws and regulations were not uniform.

[00:13:53] Speaker 02:
But even if this court were to hold that rational basis as appropriate under the Anderson Burdick test,

[00:14:01] Speaker 02:
The state cannot point to any important regulatory interests and not ensuring that their laws are consistent and uniform.

[00:14:11] Speaker 02:
Again, they point to their interests in ratifying universal vote by mail, but appellants aren't challenging that.

[00:14:17] Speaker 02:
They're challenging the lack of uniformity.

[00:14:20] Speaker 02:
And there would be absolutely no burden to the state in ensuring and mandating uniformity.

[00:14:30] Speaker 02:
I want to again point out that Bush did note that the question before the court was not whether local entities in their exercise of their expertise may develop different systems.

[00:14:41] Speaker 02:
However, the appellees cannot run with that statement and say they're off the hook.

[00:14:46] Speaker 02:
What the court meant was that there are circumstances where counties can apply their own procedures.

[00:14:51] Speaker 02:
However, the court did find that unequal methods of counting votes among counties constitutes

[00:14:59] Speaker 02:
violation of the Equal Protection Clause when those votes disproportionately impact voters in certain counties.

[00:15:05] Speaker 02:
The court also emphasized that the state in that case had the power to ensure uniformity and did not, much like this case.

[00:15:16] Speaker 02:
Courts all across the country have been applying Bush versus Gore to state authorized election systems.

[00:15:23] Speaker 02:
We saw that in Stewart versus Blackwell.

[00:15:26] Speaker 02:
We saw that in Northeast Ohio Coalition for the Homeless

[00:15:29] Speaker 02:
and we saw that in black versus McGuffage and common cause versus Jones.

[00:15:35] Speaker 02:
The county attempts to distinguish common cause and black because they involve statistically less reliable punch card voting machines.

[00:15:45] Speaker 02:
But that is a distinction without a difference.

[00:15:48] Speaker 02:
Whether counties use uneven manual procedures or voting machines is a distinction without a difference.

[00:15:57] Speaker 02:
For example,

[00:15:59] Speaker 02:
In 2012, in the Ohio Coalition for the Homeless, the Sixth Circuit applied Bush versus Gore to poll workers' unequal treatment of ballots.

[00:16:09] Speaker 02:
There, the Ohio Consent Decree allowed certain voters to save their ballots from rejection if they could show that the poll workers caused their wrong precinct vote.

[00:16:22] Speaker 02:
This caused unequal and arbitrary counting and rejection of ballots.

[00:16:27] Speaker 02:
And then we had recently the Kansas Court of Appeals holding that Kansas' statute regarding signature verification violated or stated a claim for relief under Bush versus Gore.

[00:16:40] Speaker 05:
So, Counsel, did you want to reserve time?

[00:16:43] Speaker 02:
Yes, Your Honor, and I will reserve the remaining time for rebuttal.

[00:16:46] Speaker 02:
Thank you.

[00:16:48] Speaker 05:
Thank you.

[00:16:48] Speaker 05:
All right.

[00:16:50] Speaker 03:
Ms.

[00:16:50] Speaker 03:
Drong?

[00:16:53] Speaker 03:
Good morning, Your Honors.

[00:16:54] Speaker 03:
May it please the court, Megan Strong for State Defendants of Pellies, the California Secretary of State.

[00:17:00] Speaker 03:
and the California Attorney General.

[00:17:02] Speaker 03:
I'll be splitting my time this morning with Council for the County of Santa Clara, though I believe that the Court has already accommodated that by assigning a 10-minute timer to me, and I believe the County will use the remainder of our time.

[00:17:14] Speaker 03:
The County will be addressing issues and allegations specific to the county defendants, and I will address issues specific to the challenged laws and regulations.

[00:17:24] Speaker 03:
In this case, plaintiffs seek to reverse decades of progress at the state and local level toward expanding voter participation in California elections, particularly through statewide all mailed ballot voting.

[00:17:38] Speaker 03:
to use this litigation to impose their preferred electoral system and requirements on the state, but their policy disagreements with the state and with local elections officials do not amount to any claim under the equal protections or due process clauses.

[00:17:56] Speaker 03:
In fact, the sweeping relief that plaintiffs seek here would make it harder for Californians to vote and to have their votes counted, and it would invite excessive federal entanglements in state elections.

[00:18:07] Speaker 03:
This court should affirm the district court's dismissal of the second amended complaint with prejudice.

[00:18:14] Speaker 03:
Unless the court has any specific place that would like me to start, I'll begin with the Anderson verdict framework, which

[00:18:19] Speaker 03:
This court stated clearly in Public Integrity Alliance versus Tucson that Anderson Burdick is the appropriate standard of review in cases such as this challenging regulations of the right to vote.

[00:18:33] Speaker 03:
So here, the court need only consider whether or not plaintiffs have alleged any burden at all on the right to vote that's imposed by these regulations and whether or not that burden, if any, is justified by the state's interests.

[00:18:47] Speaker 03:
Here, plaintiffs claims fail as a matter of law when that framework is applied.

[00:18:53] Speaker 03:
So looking first to that burden step, plaintiffs have failed to allege any burden at all.

[00:18:59] Speaker 03:
I'll begin with the allegations that Council focused on in her opening remarks regarding the alleged lack of uniform standards.

[00:19:08] Speaker 03:
simply put, California has uniform standards.

[00:19:11] Speaker 03:
Plaintiff's allegations instead focus on county variations, but those variations, even if true, affect all voters equally.

[00:19:20] Speaker 03:
To the extent that a vote is counted that otherwise should not be, that additional counted vote impacts all voters equally.

[00:19:30] Speaker 03:
It's not the case here that any particular county is giving extra weight or less weight to any particular vote based on how it is applying the standards or based on how that person votes.

[00:19:43] Speaker 03:
Simply put, every person in the state of California has the opportunity to vote either by mail or in person, and those votes are then counted in a uniform manner under the challenged laws and regulations.

[00:19:56] Speaker 00:
Are there any elections where it's winner take all by county or something?

[00:20:00] Speaker 00:
I mean, I didn't really understand exactly what the concern is, but it seems like plaintiffs are alleging that in some counties there are more fraudulent votes.

[00:20:10] Speaker 00:
And so if there were some election where it's like you counted a county as one vote and the next county is one vote when you add them all together,

[00:20:20] Speaker 00:
for some sort of state office or something.

[00:20:22] Speaker 00:
Maybe this could matter if county by county, but I couldn't quite figure out which types of elections might be like that.

[00:20:28] Speaker 03:
So I'm not aware, Your Honor, of any such election, and I'll note that plaintiffs don't allege in their complaint that there is any such election that would have that effect.

[00:20:37] Speaker 03:
The fact is the elections that plaintiffs focus on in their complaint and their allegations are statewide elections that do not have that result.

[00:20:45] Speaker 03:
And so any

[00:20:47] Speaker 03:
over counted votes and eligible votes that should not have been counted to the extent they were would affect all voters equally.

[00:20:54] Speaker 03:
They would not affect the voters who voted in the county where that vote was being counted any differently than any other voter at the rest of the state.

[00:21:01] Speaker 05:
My understanding of their claim is that counties that do not have uniform vote by mail that require vote in person are disadvantaged compared to counties that have vote by mail.

[00:21:18] Speaker 03:
So I would submit, Your Honor, that it's slightly different.

[00:21:22] Speaker 03:
It's that all counties have vote by mail.

[00:21:26] Speaker 03:
California's regulations.

[00:21:27] Speaker 03:
It's statewide.

[00:21:29] Speaker 03:
It's statewide.

[00:21:30] Speaker 03:
Yes.

[00:21:31] Speaker 03:
And so my understanding of the complaint is that plaintiffs allege that different counties verify signatures differently.

[00:21:43] Speaker 03:
the signatures that are on those vote by mail ballots.

[00:21:46] Speaker 03:
But the fact is that the state of California has uniform regulations that all counties are required to apply to evaluate those signatures and to verify them.

[00:21:58] Speaker 03:
The fact that plaintiffs would prefer to see a different method of verification does not establish that the existing method of verification, the existing standards are not uniform.

[00:22:07] Speaker 03:
They are uniform.

[00:22:09] Speaker 03:
And the fact that plaintiffs seek to see a different set of standards does not establish any burden on their right to vote, particularly here because if there is any impact of, plaintiffs allege at most the possibility of an increase in voter fraud under the challenge regulations.

[00:22:29] Speaker 03:
And while we can test that, even if we were to assume that there was an increased risk of voter fraud,

[00:22:36] Speaker 03:
those that that increased risk would impact all voters equally.

[00:22:41] Speaker 04:
So my understanding is the regulations require like a certain number of points to not match in the signature before it can be rejected and requires certain amount of review.

[00:22:53] Speaker 04:
but then there's some county variation permitted within those standards.

[00:22:58] Speaker 04:
I think the most specific allegation I could find in the complaint was that some counties use machines, some counties don't, and the machines can be calibrated to different levels of sensitivity.

[00:23:14] Speaker 04:
But then I think even after the initial review, there is some kind of required secondary review

[00:23:24] Speaker 04:
And then, am I getting all of that right so far?

[00:23:29] Speaker 03:
Mostly, Your Honor.

[00:23:29] Speaker 03:
I might say it a little bit differently than I'm thinking so far.

[00:23:31] Speaker 04:
Okay.

[00:23:32] Speaker 04:
And then, if I understood your opposing counsel's argument correctly, is that the, what I think you're calling regulations that impose some statewide standards for signature verification

[00:23:44] Speaker 04:
If she's talking about the same thing, she's saying that they're not binding, and so then the counties aren't necessarily following them.

[00:23:53] Speaker 04:
If I'm getting the argument, knitting them together correctly, what is your response to that?

[00:24:00] Speaker 03:
Yes, Your Honor.

[00:24:01] Speaker 03:
So speaking to the allegation by plaintiff's counsel that the regulations are not binding, that's not accurate.

[00:24:10] Speaker 03:
These regulations are binding.

[00:24:11] Speaker 03:
Every county is required to follow them.

[00:24:14] Speaker 03:
I think what Council may be referring to is the fact that parts of one of the regulations refers to a set of factors that elections officials may rely on in determining whether or not signatures match.

[00:24:30] Speaker 03:
Those

[00:24:31] Speaker 03:
are quote unquote discretionary, including because not every factor necessarily will apply to every signature.

[00:24:38] Speaker 03:
But the fact is, the state does present uniform factors that the county officials may consider.

[00:24:43] Speaker 03:
The state also, in the same regulation, presents another set of factors that officials are required to consider in each signature.

[00:24:52] Speaker 03:
That includes things like whether or not the signature was written in haste,

[00:24:55] Speaker 03:
whether there may be reason for the signature to have changed over time.

[00:24:59] Speaker 03:
So the contention that the state simply put out regulations and but then said counties feel free to disregard these if you choose.

[00:25:07] Speaker 03:
It simply is not accurate.

[00:25:09] Speaker 03:
These are very clearly set out in the regulations that plaintiffs challenge and counties are able to follow them.

[00:25:16] Speaker 03:
Speaking specifically to some of plaintiffs allegations that there may be some variation between county by county.

[00:25:23] Speaker 03:
It's important to note that this court and other courts have repeatedly recognized that some degree of county by county variation is inevitable in elections, but that on its own is not sufficient to give rise to a constitutional violation.

[00:25:37] Speaker 03:
Even in the Lemons v. Bradbury case that Council referred to in her opening remarks and that this court should certainly look to in this case, there was evidence before the court that different counties had rejected different numbers of signatures.

[00:25:52] Speaker 03:
In that case, and the court found that that was natural and uniform results can produce different results, but that on its own was not sufficient to overrule the decision that those signature requirements in that case were sufficient and did not give rise to a constitutional violation.

[00:26:10] Speaker 03:
Finally, I'd just like to make one more point about an issue that came up in opening remarks that I think is really salient in this case, and that's the distinction between cases in which regulations that denied people the right to vote, that affirmatively made it more likely that somebody's vote would not be counted.

[00:26:29] Speaker 03:
Those cases are clearly distinct from the case we have here.

[00:26:33] Speaker 03:
In those cases, for example, Common Cause, the Black Case, these cases that plaintiffs rely on,

[00:26:38] Speaker 03:
In those cases, people were disenfranchised because their votes were not counted.

[00:26:43] Speaker 03:
Here, plaintiffs do not allege that their votes were not counted.

[00:26:47] Speaker 03:
They do not allege that any group of voters' votes are not counted.

[00:26:50] Speaker 03:
They allege only that the possibility that some votes might not be counted and that might be over counted, and that's a clearly different case here and does not give rise to a constitutional violation.

[00:27:03] Speaker 03:
I see my time is up, so unless the Court has further questions for me, I'll renew our request to affirm dismissal.

[00:27:09] Speaker 03:
Okay.

[00:27:09] Speaker 03:
Thank you, Council.

[00:27:12] Speaker 05:
Ms.

[00:27:12] Speaker 05:
Hanna, where?

[00:27:24] Speaker 01:
Good morning, and may it please the court, Deputy County Council for the County of Santa Clara, Mary Hannaweer, arguing on behalf of all county elections officials, appellees.

[00:27:34] Speaker 01:
Appellants seek to bring their policy disagreements with the state and county registrars to this court under the guise of a constitutional claim, but courts have long recognized that federal elections are primarily conducted by local governments that necessarily have discretion in how they organize election administration.

[00:27:53] Speaker 01:
Further courts time and again have held that the Constitution is not an election fraud statute, and there are not constitutional claims arising out of garden variety election irregularities.

[00:28:05] Speaker 01:
And this makes sense.

[00:28:07] Speaker 01:
Elections are extremely technical, heavily regulated, especially at the state level, and happen under intense pressure with short deadlines.

[00:28:16] Speaker 01:
Yes, sometimes mistakes may happen, but there are state court proceedings designed for quick adjudication to resolve concerns over processes or procedures that arise during an election, as well as state procedures for recounts and elections contests.

[00:28:31] Speaker 01:
At the end of the day, appellants are not raising constitutional claims.

[00:28:35] Speaker 01:
Instead, they have generalized policy concerns about how California and its county elections officials design and carry out elections.

[00:28:43] Speaker 01:
It is a policy disagreement about how to balance election security and integrity with ensuring access to the ballot, reducing barriers to voting, and finalizing results efficiently and effectively.

[00:28:55] Speaker 01:
Appellants would prefer a system built on an assumption that voter fraud is likely and must be ferreted out even at the cost of erecting additional barriers to exercising the right to vote.

[00:29:06] Speaker 01:
whereas California has designed a system that expands access to the ballot, increases voter participation, and focuses security measures on likely vulnerabilities.

[00:29:17] Speaker 01:
Appellants have failed to convince the California legislature of their position, but that disagreement does not give rise to a constitutional claim.

[00:29:25] Speaker 01:
For their appellants seek sweeping relief beyond declaring much of the election system unconstitutional, including challenging universal vote by mail, according to their complaint, as well as an undefinable set of future laws and regulations.

[00:29:39] Speaker 01:
They further seek special masters to perform an audit of all elections since November 2020 and to essentially put California's election system into a permanent receivership moving forward.

[00:29:50] Speaker 01:
Appellant's second amended complaint fails to state a claim under the equal protection clause or due process clause.

[00:29:58] Speaker 01:
As counsel for the state laid out, the challenge statutes and regulations do not burden the right to vote.

[00:30:04] Speaker 01:
If anything, they exist to make it simpler and more secure for voters to exercise their right to vote.

[00:30:09] Speaker 01:
Therefore, under the Anderson-Burdick framework, the state's important governmental interests are more than enough to justify the challenge statutes and regulations.

[00:30:17] Speaker 01:
Appellants continually rely on Bush v. Gore.

[00:30:19] Speaker 00:
Can I ask a question about the framework?

[00:30:21] Speaker 00:
Yes.

[00:30:21] Speaker 00:
I think I understand your argument to be that we should apply Anderson Burdick to at least some things, and I think I understand better how the equal protection aspect of this claim would fit under Anderson Burdick than I do about the due process.

[00:30:36] Speaker 00:
It seems like in Sewell's and Bennett, there was sort of a separate due process analysis, and I'm wondering

[00:30:41] Speaker 00:
I know you think the due process claim fails, but do you think it's a separate analysis or do you think it's under Anderson Burdick?

[00:30:48] Speaker 01:
Thank you, Your Honor.

[00:30:48] Speaker 01:
I think the answer is both and insofar as I think the courts have applied the Anderson Burdick framework to constitutional challenges at the facial

[00:30:58] Speaker 01:
level of a facial challenge to a statute or regulation, but I do think that in schools and in this case, there are also county by county or individual by individual type allegations where I think the analysis under the due process clause related to distinguishing garden variety election irregularities from something that calls into question the fundamental fairness of the election is the analysis the courts have applied.

[00:31:26] Speaker 00:
And that analysis of whether this is just a garden variety allegation or something more fundamental.

[00:31:32] Speaker 00:
in your view is a due process analysis that's outside of Anderson-Burdick?

[00:31:36] Speaker 01:
I think it's consistent with Anderson-Burdick, but it does seem like the courts have sort of gone further than just the sort of Anderson-Burdick analysis to look into whether or not there are allegations that rise above the level of garden variety election irregularities.

[00:31:52] Speaker 01:
And I think that's primarily in instances like in this one where there are county by county allegations.

[00:31:58] Speaker 01:
So perhaps it's

[00:32:00] Speaker 01:
more an as-applied type challenge and analysis in that instance.

[00:32:09] Speaker 01:
Bush v. Gore was expressly limited by the Supreme Court to its facts.

[00:32:13] Speaker 01:
It has limited, if any, precedential value.

[00:32:16] Speaker 01:
The only cases that appear to follow it closely address the same types of issues with unreliable punch card voting technology, which is not an issue in this case.

[00:32:25] Speaker 01:
And the Supreme Court explicitly noted that Bush v. Gore did not address with our local entities and the exercise of their expertise may develop different systems for implementing elections.

[00:32:35] Speaker 01:
Second, the Ninth Circuit.

[00:32:37] Speaker 01:
In several cases, Lemons versus Bradbury, Rodriguez versus Newsome, Southwest Voter Registration Education Project versus Shelley, and Short V. Brown has repeatedly recognized the limited presidential value of Bush v. Gore.

[00:32:50] Speaker 01:
As Council of the State noted as well, Lemons is particularly instructive in this case.

[00:32:55] Speaker 01:
Since there, the Oregon signature verification standards used were far less robust than California's signature verification standards.

[00:33:03] Speaker 01:
In that case, the direction from the Oregon

[00:33:06] Speaker 01:
statute was to compare the signature on the referendum petition to the signature on file and if it did not match to do a second layer of review.

[00:33:17] Speaker 01:
California standards are similar.

[00:33:18] Speaker 01:
It's to compare the signature on the ballot to the signature on file and if it's rejected to subject it to at least another layer of review but goes further than that.

[00:33:27] Speaker 01:
First it suggests that the signature on the ballot

[00:33:31] Speaker 01:
is presumed to be that of the voter because we have set up a system where we send the ballot to the voter and the voter returns it.

[00:33:38] Speaker 01:
Then that is a chain of custody that gives sufficient industrial reliability that most likely the signature on the ballot is that of the voter.

[00:33:46] Speaker 01:
Second, our second layer of review for rejected signatures requires that two elections officials find beyond a reasonable doubt that the signature does not match.

[00:33:57] Speaker 01:
And additionally, as state appellants laid out in the regulations, there are both mandatory and permissive factors that signatures should be reviewed under in that the signature should be compared by

[00:34:13] Speaker 01:
assuming that if it, for example, appears that it was written hastily, or if it appears it was written on an uneven surface, that that might be a factor to consider in why it may appear potentially to not match, and then gives a list of permissive characteristics, which, as the state mentioned, may not apply to all signatures.

[00:34:30] Speaker 01:
For example, not every name has an I or a T, and so the characteristics about how you dot an I across a T wouldn't apply to every name.

[00:34:39] Speaker 01:
But it would be an unrealistic understanding of those permissive characteristics to say that an elections official would be permitted to ignore them altogether.

[00:34:48] Speaker 01:
It's rather a recognition that not every characteristic is relevant to every signature compared to them.

[00:34:56] Speaker 01:
Appellants rely on black and common cause repeatedly in their briefing.

[00:35:00] Speaker 01:
Those were both about punch card machine technology.

[00:35:04] Speaker 01:
We would note that the common cause district court case was called into question by Southwest voter registration education project, a case from this circuit, which involved many of the same counties and essentially the same claim about the same voting technology machine.

[00:35:21] Speaker 01:
And the Ninth Circuit found that the district court did not abuse its discretion in Southwest voter registration and certification project by finding that they were not likely to succeed on an equal protection claim.

[00:35:34] Speaker 01:
County appellees would note that many of appellant's allegations are not well-pled because they are conclusory or speculative.

[00:35:42] Speaker 01:
And so while appellants continually rely on saying they have thousands of affidavits and thousands of allegations, the court should look carefully through its complaint to note that many of the allegations are conclusory or speculative.

[00:35:55] Speaker 01:
For example, an allegation that an observer saw a person drop off several ballots without voter signatures and those ballots were counted is speculative at best.

[00:36:04] Speaker 01:
All that observers saw was the election official take custody of the ballots.

[00:36:09] Speaker 01:
As detailed in our briefing, the processing of vote-by-mail ballots has several steps, and it would be implausible for an observer to be able to track those specific ballots through the system and know they were counted.

[00:36:22] Speaker 01:
Several of the allegations are cast as if county elections officials are engaged in wrongdoing but are actually allegations of officials following the law or doing nothing wrong.

[00:36:31] Speaker 01:
For example, ballot duplication necessarily occurs after the elections official has custody of the ballot and voters are not present.

[00:36:40] Speaker 01:
Appellants repeated allegations relating to voter registration rules similarly call for the court to draw speculative inferences.

[00:36:48] Speaker 01:
Appellants do not bring a claim directly related to the National Voter Registration Act and voter registration maintenance.

[00:36:55] Speaker 01:
Instead, the allegations seek to create a general atmosphere that it is possible that inactive debt or otherwise ineligible voters are on the rolls and that somehow directly increases the risk of voter fraud.

[00:37:07] Speaker 01:
Further, appellants speculate and ask this court to draw the inference that every vote by mail ballot that's missing a signature or has a mismatched signature should not be counted.

[00:37:16] Speaker 01:
And they suggest that this is because they're all fraudulent.

[00:37:19] Speaker 01:
Not true.

[00:37:20] Speaker 01:
What should have happened is those ballots would have gone to the signature cure process whereby voters would have an opportunity to correct the missing or mismatched signature.

[00:37:28] Speaker 01:
And some of them would have and would have been lawfully counted.

[00:37:31] Speaker 01:
So it's not the case that the court can make the speculative inference that every single mismatched or missing ballot

[00:37:37] Speaker 01:
is invalid or fraudulent.

[00:37:39] Speaker 01:
And for all of those reasons, the counties would respectfully ask that the district court's decision to dismiss this case in full without leave to amend be affirmed.

[00:37:47] Speaker 05:
Thank you, counsel.

[00:37:49] Speaker 05:
Ms.

[00:37:49] Speaker 05:
Godero, you have some time remaining.

[00:37:58] Speaker 02:
Thank you.

[00:37:58] Speaker 02:
I want to first address that appellants are not seeking to overturn any expanded opportunities to vote.

[00:38:06] Speaker 02:
Again, this is not a policy dispute.

[00:38:08] Speaker 02:
The appellee's suggestion that the guidelines are uniform is simply inaccurate and misstates the allegations.

[00:38:17] Speaker 02:
They may have guidelines, but it doesn't address many of the core issues that we allege in our complaint, such as requiring election workers to spend a specific amount of time reviewing signatures, because in our case, we have alleged numerous election workers spending one to four seconds looking at signature pairs.

[00:38:37] Speaker 02:
when individuals go to school to look at signatures.

[00:38:41] Speaker 02:
One to four seconds is not something that's going to instill public confidence in the election process.

[00:38:47] Speaker 02:
That is something that the state of California could easily require in its laws, just like it can require

[00:38:53] Speaker 02:
election workers to look at specific points of comparison.

[00:39:00] Speaker 02:
If you look at the guidelines, it says may, not must.

[00:39:04] Speaker 02:
That is a simple fix that the state of California could fix.

[00:39:08] Speaker 02:
It also doesn't require election workers to use a signature verification machine.

[00:39:13] Speaker 02:
So you have some election workers

[00:39:16] Speaker 02:
using machines and some others doing manual procedures.

[00:39:20] Speaker 02:
There are many things if you look in the complaint excerpts of records page 61 through 72, we specify the specific issues that are not uniform.

[00:39:33] Speaker 02:
In regard regarding lemons versus Bradbury, the only thing that was alleged in that that case was that there were different variations in regulations.

[00:39:43] Speaker 02:
That is it.

[00:39:44] Speaker 02:
That is entirely different here where we are alleging that there are differences and application of procedures.

[00:39:52] Speaker 02:
as a result of lack of uniformity.

[00:39:55] Speaker 02:
That is a big difference.

[00:39:57] Speaker 02:
The contention.

[00:39:58] Speaker 00:
I think you want the machine signature matching, not the manual, but you could get uniformity by saying everyone has to do it manually.

[00:40:06] Speaker 00:
Would that solve the problem?

[00:40:08] Speaker 02:
Well, Your Honor, we're arguing that

[00:40:13] Speaker 02:
Our contingent would be that, at the very least, the signatures should be ran through a machine first.

[00:40:20] Speaker 04:
How do you get to that being a constitutional requirement that every county use a machine to verify a signature?

[00:40:27] Speaker 02:
We get to that constitutional requirement if we can show that the practice is being applied right now.

[00:40:33] Speaker 02:
are leading to massive irregularities, which we have demonstrated over the past several elections, where you have election workers spending at most four seconds looking at a signature when they should be spending way more than four seconds looking at a signature.

[00:40:49] Speaker 02:
The contention that this case is different because it involves invalid votes being counted is immaterial because in Bush versus Gore, there were facts that showed that some county procedures led to over votes, not just under votes.

[00:41:08] Speaker 02:
We also state a due process claim because the irregularities do not amount to garden variety irregularities.

[00:41:15] Speaker 02:
They're not the result of random mistake.

[00:41:18] Speaker 02:
We have alleged over several years, thousands of irregularities, 124,000 more votes being accounted when they should not have been counted.

[00:41:29] Speaker 02:
And I think my time is up.

[00:41:30] Speaker 02:
Thanks.

[00:41:31] Speaker 05:
All right.

[00:41:31] Speaker 05:
Thank you, Council.

[00:41:32] Speaker 05:
Election Integrity Project California versus Weber be submitted.