"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 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.
[Footnote -] 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)."
