Metropolitan News-Enterprise


Monday, June 25, 2018


Page 3


Ninth Circuit:

Judge Properly Declined to Block State’s Vote-by-Mail Law


By a MetNews Staff Writer


The Ninth U.S. Circuit Court of Appeals on Friday affirmed the denial of a preliminary injunction sought by plaintiffs in a challenge to California’s Voter’s Choice Act, meaning that the five counties that have opted-in to an all-mailed or dropped-off ballot system will not have to set up polling places for the Nov. 6 election.

Affected counties are San Mateo, Madera, Napa, Nevada, and Sacramento.

The Voter’s Choice Act (“VCA”)—providing for balloting by mail, only, at the option of counties—was enacted by the Legislature in 2016 in light of only 42 percent of the registered voters turning out for the November 2014 general election, a historic low for the state.

To test the system, 14 counties were specified as being eligible to use the system for this year’s election, with five counties doing so. All 58 counties will be eligible to opt-in in 2020, with a separate provision for Los Angeles County, allowing a hybrid system.

Equal Protection Argument

The plaintiffs sought to block this year’s experiment, arguing that the VCA affords voters, “depending on the county in which they reside,” either “greater or lesser access to the franchise of voting,” in derogation of the constitutional right of equal protection.

U.S. District Court Judge Troy L. Nunley of the Eastern District of California on April 24 denied a preliminary injunction, and the Ninth Circuit expedited an appeal. It affirmed Nunley in an opinion by Circuit Judge John B. Owens.

He reviewed Nunley’s decision for abuse of discretion and “clear error” of law, noting that a “strict scrutiny” test “applies only where the burden on the fundamental right to vote is severe.”

By contrast, he wrote, “[t[he VCA does not burden anyone’s right to vote.”

Easier to Vote

Owens continued:

“Instead, it makes it easier for some voters to cast their ballots by mail, something that California voters already can do. As for voters outside the counties that have opted in to the all-mailed system, their access to the ballot is exactly the same as it was prior to the VGA’s enactment. To the extent that having to register to receive a mailed ballot could be viewed as a burden, it is an extremely small one, and certainly not one that demands serious constitutional scrutiny.”

He went on to observe that the appellants “have not even alleged—let alone introduced evidence to demonstrate—that the VCA will prevent anyone from voting” and have not “cited any authority explaining how a law that makes it easier to vote would violate the Constitution.”

‘Laboratories for Experimentation’

The Circuit judge pointed to the U.S. Supreme Court’s 2015 decision in Arizona State Legislature v. Arizona Independent Redistricting Commission which authorized to serve “as laboratories for experimentation to devise various solutions where the best solution is far from clear.”

Owens commented:

“By phasing in a new election system gradually, and by requiring reports on the new system’s success, California is doing just that.”

A contrary view, he said, “would essentially bar a state from implementing any pilot program to increase voter turnout.”

Procedures Used

In counties using the new system, ballots are automatically mailed to voters 29 days before an election. They may be retuned by mail or dropped off at a “ballot dropoff location” described by Owens as “a large locked mailbox” or turning in at a “vote center,” which said is “a voting-resource hub that replaces traditional polling places.”

Elections Code §4007 establishes for Los Angeles County what the opinion describes as “essentially a hybrid between the traditional polling-place system and the new all-mailed system.” If the county opts in, or after Jan. 1, 2020, it may use both systems and, after four years, must choose to use one or the other exclusively.

The case is Short v. Brown, 18-15775.


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