Saying late arriving mail-in ballots illegally - and repeatedly - drag out vote counting for weeks and overturn Election Day results in California congressional races in favor of Democrats, a San Diego Republican congressman has filed suit to force California to no longer count vote-by-mail ballots received up to a week after Election Day.
On March 13, U.S. Rep. Darrell Issa filed suit in San Diego federal court.
The lawsuit was filed nominally against California Secretary of State Shirley N. Weber. But the lawsuit asks the federal court to issue an order blocking a state law which requires California election officials to count vote-by-mail ballots received long after Election Night, even for races for Congress and other federal offices.
The lawsuit alleges this violates a federal law, which Issa argues establishes Election Day as the final moment legally valid votes can be cast.
Issa is represented in the lawsuit by attorneys from the conservative legal advocacy organization, Judicial Watch.
“I am grateful to have Judicial Watch’s support in this important lawsuit,” Issa said in a statement issued in a release from Judicial Watch announcing the legal action. “California voters need all the help they can get to ensure fair elections.”
“Federal law requires an Election Day – not an ‘Election Week,’” Judicial Watch President Tom Fitton said in the same release. “California’s counting of ballots that arrive a full seven days after Election Day is unlawful, encourages fraud, and undermines voter confidence in election outcomes.”
The lawsuit is similar to others Judicial Watch has launched across the country, also challenging extended vote-by-mail receipt and counting deadlines.
In a lawsuit against a deadline extension law in Mississippi, Judicial Watch secured a ruling in their favor from the U.S. Fifth Circuit Court of Appeals, which declared counting ballots received after Election Day in federal races violated federal law.
In Illinois, Judicial Watch challenged a vote-by-mail law, which forces election officials to count all mail-in ballots received up to two weeks after Election Day, even if the ballots don't include a postmark proving they were mailed by Election Day, as otherwise required by law.
Judicial Watch, along with U.S. Rep. Michael Bost, R-Illinois, lost in the lower courts. However, they have appealed those rulings to the U.S. Supreme Court. The high court is currently awaiting a response brief from Illinois state officials defending the law. The court set a deadline of April 4 to receive the state of Illinois' response.
In the meantime, Judicial Watch has partnered with Issa to open a third front in the fight to end the counting of vote-by-mail ballots that come in long after Election Day.
All of the lawsuits center on federal law, which establishes an official Election Day for federal offices. Under that federal law, votes must be cast by "the first Tuesday after the first Monday in November of every even-numbered year."
The lawsuits assert the vote-by-mail rules improperly turn "Election Day" into an election period, without authorization from Congress to do so.
Critics of such laws, in California and elsewhere, have asserted the change in the law creates new opportunities for dominant parties and powerful campaign organizations to manipulate the system and cheat by counting questionable or illegitimate ballots, allowing potentially thousands of otherwise invalid ballots to sway close election contests.
The lawsuits have argued the laws improperly "dilute" the value of their votes and those cast by others on or before Election Day, in keeping with federal law, before any vote totals can be known.
The administration of former President Joe Biden and the Democratic Party have intervened in court to defend such laws, arguing the laws don't conflict with federal law because the they still require all ballots to be mailed on or before Election Day, even if the laws may allow votes to be counted without any independent proof they actually were mailed at all.
In the new lawsuit, Issa notes the extended ballot receipt deadlines in California and elsewhere have almost entirely favored Democratic candidates, who benefit in election after election from lopsided vote-by-mail counts in their favor.
Routinely, they note, Republican candidates surge to a lead on Election Day, only to watch their leads get whittled away day by day, as more and more purported Democratic votes arrive, until Democratic candidates squeak out a win in the final days of vote counting in California and elsewhere.
In California, however, the process can be particularly excruciating, as the state routinely takes more than a month to count ballots in a wide assortment of races, including for Congress.
Issa notes two of his Republican colleagues, former U.S. Reps. Michelle Eunjoo Steel and John S. Duarte both lost their seats in the 2024 general election in that fashion, surging to leads, only to lose "due to late-arriving VBM" (vote-by-mail) ballots, which broke heavily for their Democratic opponents as election officials claimed to continue counting votes for weeks after Election Day.
In the lawsuit, Issa claims the law and extended vote counting violate his constitutional right - and those of other candidates - to run for office under the rules laid out in federal law.
He asserted the extended vote-by-mail deadlines cause him and other candidates to budget "the campaign's limited resources" and spend money to "organize and monitor late-arriving VBM ballots," when the votes shouldn't even be counted, under federal law.
Under California election law, Issa said, "more votes will be counted than federal law allows to be counted."
"Under the federal Election Day statutes, a qualified ballot for federal office is not a legally cast vote unless and until it is received by an election official on or before Election Day," Issa and Judicial Watch wrote.
"Plaintiff (Issa) has an interest in ensuring that the final vote tally accurately reflects the legally valid votes cast.
"As a result of California’s Receipt Deadline, the final vote tally will not accurately reflect the total legally valid votes cast," the complaint said. "... An illegal VBM ballot counted for his opponent is, in effect, a vote against Plaintiff's candidacy. Accordingly, Plaintiff suffers electoral harm when illegal and invalid VBM ballots are cast against him and, like his colleagues in 2024, faces a material risk that he may lose future elections due to these unlawful ballots."
The state has not yet responded to the lawsuit in court.