State courts are encountering a new type of “vote dilution” claim, which asserts that certain election rules or practices are unconstitutional because they increase the hypothetical risk that fraudulent votes which will be cast, which would dilute the weight of “legal” ballots. These hypothetical vote dilution claims increasingly invoke state constitutional rights. With sparse, unsettled, and often conflicting precedent on these types of claims, state courts may understandably find these claims difficult to adjudicate, especially in the highly charged election space. This Report offers state courts context on these claims and analytical frameworks with which to evaluate them under state constitutions.
Courts are encountering a new type of “vote dilution” claim, one that could have serious implications for how states conduct elections. These claims assert that certain election rules or practices are unconstitutional because they increase the risk that fraudulent votes will dilute the weight of “legal” ballots.
Such claims—which are typically brought pre-election, before any ballots have been cast—take two main forms. First, some suits allege that a voting-related law—often one that makes voting more accessible or less burdensome—makes it too easy to cast fraudulent ballots (or “facilitates” fraud). Second, some suits focus on government inaction and allege that the government’s failure to comply with a legal requirement could allow fraudulent votes to be cast. As a shorthand label for these two related sorts of claims, this report uses the term “hypothetical vote dilution.”1
To date, most hypothetical vote dilution claims have been litigated in federal courts and under federal law, and none has ultimately been successful. But plaintiffs have increasingly begun to bring these suits in state court, under state law. With sparse, unsettled, and often conflicting precedent, state courts may understandably find these claims difficult to adjudicate, especially in the highly charged election space. This report seeks to fill that gap, offering state courts context on these claims and analytical frameworks with which to evaluate them.
To do so, the report proceeds in three parts. Part I provides an overview of hypothetical vote dilution claims in federal and state courts. These claims, which first emerged in the lead up to the 2020 election, have continued to evolve since then. As part of that evolution, plaintiffs are increasingly bringing these claims in state court, invoking state constitutional rights.
Part II then offers state courts guidance on approaching these claims. This part makes two main points. First, it explains the serious tension between hypothetical vote dilution claims and state constitutions’ commitment to democracy. State constitutions generally go further than the federal constitution in expressly protecting the right to vote and promoting free and fair elections. While litigants have attempted to ground hypothetical vote dilution claims in these democratic rights and values, that framing has it backward. Because the remedies typically sought in these cases would burden and potentially exclude legitimate voters, they threaten to undermine rather than enhance electoral integrity. Accordingly, courts should approach these claims skeptically.
Second, Part II distinguishes hypothetical vote dilution claims from recognized vote dilution doctrines. Although these new claims borrow language from claims that federal law already recognizes, they are a novel variation—and misappropriation—of conventional vote dilution doctrines. To date, “vote dilution” doctrines have principally served as a limit on electoral practices that diminish the electoral influence of a racial minority group. Restrictions on partisan gerrymandering and the prohibition on malapportionment can also be understood in terms of diluting the voting strength of some groups or individuals as compared to other voters. Hypothetical vote dilution claims differ in kind, and state courts should seek to avoid muddling or misappropriating that doctrine.
Finally, Part III briefly discusses existing legal mechanisms to protect elections against fraud. State legislatures in every state have enacted laws to deal with the rare instances of actual voter fraud and other abuses of the electoral process by third parties and government officials. Concerns about fraud are best handled through these established pathways rather than through novel state constitutional claims that seek to address hypothetical fraud by imposing real burdens on voters and election administrators.
Beginning around 2020, litigants aligned with President Trump began to file lawsuits that claim to be about “vote dilution” but, as will be explained in Part II, are distinct from the recognized vote dilution claims in critical ways. These hypothetical vote dilution claims “assert[] that an election rule is unconstitutional because it makes it too easy to cast fraudulent ballots that, when tabulated, will dilute the strength” of validly cast ballots.2
As detailed below, some of these claims are brought directly under the federal or state constitutions, while others use a theory of vote dilution to establish injury (and thus confer legal standing). Either way, all hypothetical vote dilution claims invoke the federal and/or a state constitution, asserting that the challenged action or inaction could lead to fraudulent votes being cast in an election, and that this possibility violates the plaintiffs’ constitutional right to vote.
“Facilitation” claims are challenges to state laws or regulations that govern voting—usually those that expand ballot access or make voting easier. In some of the earliest such suits, plaintiffs alleged that states risked diluting people’s validly cast votes “when they loosened their electoral requirements” during the COVID-19 pandemic.3 For example, during the 2020 election cycle, many counties in Pennsylvania chose to set up drop boxes where voters could return their mail-in ballots at any time.4 The Trump campaign challenged this practice in federal court, arguing that these drop boxes allowed “for an unacceptable risk of voter fraud” in violation of state and federal law, and that any resulting fraudulent votes would dilute “the votes of all lawful voters who comply with the Election Code.”5
Elsewhere, plaintiffs brought facilitation claims challenging Georgia’s new rule that made it harder for election registrars to reject mail-in ballots,6Illinois’s new law making election day a holiday for all state workers,7and Minnesota’s decision to accept mail-in ballots post-marked by election day, even if they were not received until up to seven days after election day.8The hypothetical vote dilution claims in these lawsuits were primarily brought under the federal constitution,9styled in the form of traditional vote dilution claims, and nearly all of them were filed in federal court.
None of these 2020 lawsuits were successful.10Some were dismissed after a court found that such claims were noncognizable,11 others failed on standing grounds12 or for lack of evidence.13 By and large, the courts and scholars who have engaged most seriously with these cases have concluded that the federal constitution simply does not support such a claim.14 The question has yet to reach the U.S. Supreme Court.
Despite the overwhelming failure of such claims in 2020, plaintiffs have continued to bring hypothetical vote dilution claims, especially in the lead up to the 2024 and 2026 elections. Some of these claims still challenge electoral policies that make it easier to vote (facilitation claims), but the claims have evolved over time to include “inaction” hypothetical vote dilution claims. Rather than challenge a specific law or regulation, “inaction” claims allege that government officials are not complying with existing laws and regulations. The plaintiffs in these cases typically argue that this supposed noncompliance makes it hypothetically easier for fraudulent votes to be cast.
Most of these suits have to do with voter roll maintenance. Over the past few years, several lawsuits have been filed across the country alleging that state officials are not regularly maintaining the voter lists to ensure that only eligible voters are registered.15The failure, the plaintiffs allege, results in the dilution of legal votes because it allows ineligible voters to cast ballots and/or allows for voter fraud. These lawsuits ask courts to compel officials to remove anyone from the voter rolls who may be ineligible.16 While typically these lawsuits have been brought by private plaintiffs, the United States Department of Justice initiated one of these suits in 2025 against North Carolina.17
These claims have been, and will likely continue to be, brought in federal court invoking federal constitutional concerns. But, increasingly, plaintiffs are bringing these claims in state courts, invoking state constitutions. For example, in September 2024 a group of plaintiffs18 filed suit against the Nevada Secretary of State challenging the state’s practices for voter roll maintenance.19 The plaintiffs allege that over 6,000 potential noncitizens have registered to vote in Nevada, and that the Secretary of State has not taken sufficient steps to remove them from the voter rolls. They seek a court order requiring the Secretary of State to implement a new program to maintain the voter rolls and remove potential noncitizens.
The plaintiffs brought three claims under the Nevada Constitution. First, they brought an equal protection claim, citing federal case law to argue that “[e]qual protection requires that States protect the right of citizens to have their vote counted at full value without dilution or discount.”20Second, they alleged a violation of due process, based on a theory that a due process violation “may be indicated” when “the election process itself reaches the point of patent and fundamental unfairness.”21Finally, they brought a claim under the Nevada Constitution’s right to vote.22
Similarly, in August 2024, a Wisconsin voter filed a petition for a writ of mandamus against the Wisconsin Elections Commission and its commissioners and the Wisconsin Department of Transportation and its Secretary, alleging that state officials have failed to check voter registration applications against the state list of driver’s licenses and identification cards to verify applicants’ citizenship.23The plaintiff alleges that this failure hypothetically allows noncitizens to cast illegal ballots, which would dilute the lawful votes of eligible citizens and thereby violate their federal and state constitutional voting rights.24 The voter sought to compel the defendants to enter into an agreement to share certain citizenship data from the Department of Transportation to the Elections Commissions, so that the latter could identify potentially ineligible noncitizen voters and remove them from the voter rolls.
Both the Nevada and the Wisconsin lawsuits are ongoing.25
Instead of bringing direct hypothetical vote dilution constitutional claims, some plaintiffs have instead relied on a theory of vote dilution to establish injury—and thus standing—for other claims. For example, in Ball v. Chapman, a group of voters26challenged the Pennsylvania Secretary of State’s guidance instructing counties to count undated mail-in ballots in the 2022 election.27They argued that the guidance was contrary to Pennsylvania statutory law.28 And they claimed that they had standing because “the votes they validly cast have been and will be canceled out and diluted by the counting of undated or incorrectly dated ballots in contravention of” Pennsylvania law.29Similarly, in October 2024, three voters in Texas filed a voter roll maintenance suit against Harris County and its Voter Registrar.30The suit looked similar to the other voter roll maintenance challenges described above, except instead of bringing a constitutional claim, the plaintiffs only alleged violations of Texas statutory law. The plaintiffs argued that were injured because they were “susceptible to having their votes totally disenfranchised and/or diluted in violation of the Texas Election Code.”31
Courts have handled the vote-dilution-as-injury claim in various ways. The Pennsylvania Supreme Court in Ball rejected it, explaining that the voters had “not substantiated their assumption that the ballots they believe should not be counted would dilute their own” votes because “[t]here is no way of knowing whether undated or incorrectly dated absentee or mail-in ballots will be cast for Republicans, Democrats, or others.”32 Other courts have similarly rejected standing in these cases.33 In contrast, a handful of lower courts have accepted, at least preliminarily, the vote dilution injury.34More commonly, though, these cases have been disposed of in other ways, leaving the issue unaddressed.
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In sum, hypothetical vote dilution claims take a variety of forms, and state courts have approached them in different ways. Several state courts have dismissed hypothetical vote dilution claims for lack of standing, finding that a speculative fear of vote dilution from hypothetical fraud was not enough.35Some cases have been resolved through procedural technicalities,36without any decision on the merits, whereas others have been voluntarily dropped.37Yet despite their minimal success to date, hypothetical vote dilution claims are becoming more and more common in state court.
As hypothetical vote dilution claims proliferate, state courts may understandably find themselves searching for guidance. How can courts approach these highly charged election cases, often brought on expedited timelines,38while giving fair due to the rights and interests on both sides? This Part suggests some considerations to help structure the analysis.
Section II.A discusses the important differences between state and federal constitutions that should guide courts from the outset. The overarching democratic commitments enshrined in state constitutions counsel skepticism when litigants seek to compel the state to make voting more difficult. In most instances, an independent state constitutional analysis should result in hypothetical vote dilution claims being dismissed as noncognizable.
Section II.B then explains why these claims are a misappropriation of existing vote dilution doctrine. Because hypothetical vote dilution claims are conceptually unmoored from established theories of vote dilution, they should fail even if state courts simply track the relevant federal constitutional analysis.
State constitutions—which are distinct in their commitment to popular sovereignty, democratic structures, and majoritarian rule—require courts considering hypothetical vote dilution claims to place a heavy burden on litigants seeking to compel the state to make voting more onerous or difficult.
State constitutions “are not miniature federal constitutions,” and they should be analyzed on their own terms.39Although some similar clauses can be found in both the federal and state documents, “most state constitutional provisions have no federal analogue.”40State constitutions contain numerous individual rights absent from the federal document, and they spell out the contours of those rights in surprising detail.
Many of the rights found in state constitutions focus on democratic processes and participation.41Going beyond the federal constitution, the text and structure of state constitutions centers popular sovereignty, majority rule, and political equality.42 For example, every state constitution includes an express right to vote,43 which is notably absent from the federal constitution. State constitutions contain myriad other provisions protecting elections and democracy, including free elections clauses,44 provisions prohibiting disenfranchisement,45 and voter protections.46 And while the federal constitution has notably anti-majoritarian elements, “state constitutions insist on rule by popular majorities.”47
In line with these foundational state constitutional precepts, state governments have strong interests in facilitating electoral participation. And the practices commonly attacked by hypothetical vote dilution claims are almost always linked to that interest. Making it harder for registrars to reject mail-in ballots,48 providing for easily accessible ballot drop-boxes across the state,49and making election day a state holiday50are all clearly related to ensuring that every citizen can freely and fully exercise their right to vote. The same is true for government inaction—the government avoiding calls to “clean up” voter rolls in ways that could erroneously purge qualified voters is linked to an interest in ensuring every eligible voter can cast a ballot.
Hypothetical vote dilution claims seek to flip the right to vote on its head, insisting that the risk of hypothetical fraudulent votes being cast is so harmful to plaintiffs’ own right to vote as to demand state action that would inhibit the free exercise of the franchise by others. And those participatory rights are of paramount importance under state constitutions.51
To be clear, states undoubtedly have an interest in protecting against fraud and abuses of the electoral process. But hypothetical vote dilution claims do not take aim at fraud and abuse in constitutionally permissible ways. After all, state constitutions are concerned first and foremost with avoiding mass disenfranchisement or actions that could suppress the vote. This is evidenced in the text of the constitutions themselves, which commonly prohibit the government from interfering with the free exercise of the right of suffrage.52 State constitutions also contain provisions that explicitly prohibit disenfranchisement53 and certain voter qualifications that lead to disenfranchisement,54 allow voters to appeal if they are not allowed to register or to vote,55 require that voters be given certain assistance and accommodations,56 prohibit bribery of voters,57 shield voters from arrest when going to and from the polls,58 and prevent the government from obligating anyone to perform military duties on election day (thereby prohibiting them from voting).59 Many affirmatively require the state legislature to pass laws allowing for absentee voting.60 Given all this, state constitutions cannot plausibly be understood to license courts to impose restrictions or burdens on voters based on a litigant’s fears that, without tighter rules, private actors might hypothetically commit fraud.
In short, state courts considering claims of fraudulent vote dilution should be skeptical of assertions that state constitutions require judicial remedies that would make voting more burdensome or less accessible. The specific analysis will, of course, depend on the state constitution and the exact contours of the claim presented. But as they have been brought to date, most claims—which contain hypothetical allegations of fraud and sweeping requests for injunctive relief that would potentially disenfranchise or place higher restrictions on voters—should fail under any level of state constitutional scrutiny.
The discussion above explains why efforts by litigants to ground hypothetical vote dilution claims in state constitutions should generally fail. Such claims are less viable under state constitutions than under the federal constitution, not more. Sometimes, instead of (or in addition to) offering independent state constitutional analysis, plaintiffs will invoke federal vote dilution law, typically using selective quotes from U.S. Supreme Court cases. This section explains that federal case law addressing the right to an “undiluted” vote offers little conceptual support for hypothetical vote dilution claims. State courts should take care to distinguish recognized vote dilution claims from novel claims that allege dilution based on hypothetical risks of fraud.
Litigants bringing hypothetical vote dilution claims often cite to federal case law discussing the right to an “undiluted” vote under the federal constitution. This section provides a brief overview of this case law and the three recognized vote dilution doctrines under federal law. This discussion is important for courts to evaluate hypothetical vote dilution claims and distinguish them from the federal doctrines.
“Vote dilution” is an oft-used term that has a particular definition in existing law. It refers to certain practices that effectively reduce the voting power of some eligible voters as compared to other eligible voters. In contrast to vote denial cases, vote dilution cases do not involve any actual disenfranchisement. Instead, the theory behind vote dilution claims is that electoral arrangements such as district maps should treat citizens evenhandedly in terms of their ability to translate their votes in representation.
There are three recognized forms of vote dilution: malapportionment, racial vote dilution, and partisan gerrymandering.
The first recognized vote dilution claims came in the 1960s and were based on unequally apportioned electoral districts.61 The concern animating these claims is that districts with significant differences in population give voters in some districts outsized voting power compared to their peers in other districts. For example, if one state legislative district has 1,000,000 voters while another elsewhere in the state has 100,000 voters, voters in the second district have 10 times more voting power than those in the first (assuming each district elects one legislator).
As the Supreme Court has explained, states are constitutionally prohibited from drawing such maps—i.e., ones that give “the votes of citizens in one part of the State . . . two times, or five times, or 10 times the weight of votes of citizens in another part of the State”62 due to their unequal populations. For example, in Reynolds v. Sims, the Court struck down Alabama’s state legislative maps, which were not apportioned by population, holding that “the Equal Protection Clause requires that the seats in both houses of a bicameral state legislature must be apportioned on a population basis.”63In doing so, the Court explained that the constitutional right to vote included the right to not have one’s vote “diluted when compared with votes of citizens living on other parts of the State.”64 The right to vote, the Court explained, “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.”65 This form of malapportionment claim has come to be known as the “one-person, one-vote” doctrine.66
The “one person, one vote” doctrine “sparked a redistricting revolution,” and throughout the 1960s numerous claims were filed “against malapportioned congressional and state legislative districts.”67As the doctrine developed, “another type of vote-dilution claim began to burgeon—one based on race and ethnicity.”68
The concern behind these claims was that minority groups were, through district lines or other electoral systems, being prevented in many places from effectively exercising political power. For example, consider two single-member districts for the state legislature of equal population: one is 80% white and 20% Black and the other is 40% white and 60% Black. If voting is racially polarized—that is, if voters of the same race tend to vote as a bloc—then the white-preferred candidate will win in district 1 and the Black-preferred candidate will win in district 2, allowing minority voters in that district to elect the representative of their choice.
But now consider what happens if these two districts are combined into a multimember district—a district that elects two or more members to the state legislature. The new single member district is 60% white and 40% Black. In this scenario, the white majority can elect both of its preferred representatives to the state legislature, and the Black population can no longer elect a representative of their choice. Litigants began contending that such districting arrangements unlawfully diluted the voting power of Black voters relative to white voters.
These sorts of racial vote dilution claims were originally brought under the Equal Protection Clause of the federal constitution.69 But the U.S. Supreme Court limited the scope of this claim in 1980.70 As a result, most racial vote dilution claims in recent decades have been brought under Section 2 of the Voting Rights Act. In 1986, the United States Supreme Court established the legal standard to be used in evaluating these claims in Thornburg v. Gingles.71 That legal standard has been in place for forty years,72although the Supreme Court recently “updated” it in Louisiana v. Callais in ways that will significantly limit Section 2 litigation going forward.73Still, the basic theory behind this type of vote dilution claim remains the same.
Finally, vote dilution claims have historically been recognized in partisan gerrymandering cases, where lawmakers manipulate district lines in ways that advantage one political party over another.74Districts can be drawn based on party affiliation to maximize the number of seats the party in power will receive, even if that party does not receive any higher percentage of actual votes cast.
For example, imagine a state that is 60% Democratic and 40% Republican. Depending on how the districts are drawn, lawmakers can manipulate the boundaries to give either party an outsized majority of safe districts—that is, districts the party is likely to win. Such partisan gerrymandering leads to disproportionate representation. For example, Republicans in Wisconsin redrew the state’s legislative maps in 2011. In the 2012 election, Republicans won 60% of the seats despite only receiving 49% of the votes cast statewide.75Similarly, after redrawing the Illinois’s maps in 2021, Democrats won 14 out of 17 congressional seats despite statewide Democratic candidates only receiving roughly 55% of the vote.76
For years, plaintiffs across the country challenged partisan gerrymanders under the Equal Protection Clause of the U.S. Constitution.77 But in 2019, the U.S. Supreme Court held that federal constitutional challenges to partisan gerrymandering are nonjusticiable “political questions,” meaning the federal courts did not have the power to resolve them.78Partisan gerrymandering claims, however, remain cognizable in many states.79For example, the Supreme Court of Pennsylvania has held that partisan gerrymandering is unconstitutional under the state constitution, explaining that, “[b]y placing voters preferring one party’s candidates in districts where their votes are wasted on candidates likely to lose (cracking), or by placing such voters in districts where their votes are cast for candidates destined to win (packing), the non-favored party’s votes are diluted.”80
A few state courts, analyzing hypothetical vote dilution claims under their state constitutions, have mistakenly relied on language from the traditional vote dilution claims discussed in the previous section to allow the hypothetical claims to move forward. Last year, the first judicial district court of Nevada denied the Secretary of State’s motion to dismiss the plaintiffs’ hypothetical vote dilution claim under the state equal protection clause, relying on Reynolds v. Sims. The court explained that the state equal protection clause was interpreted the same as the federal clause and then cited Reynolds to demonstrate that vote dilution was a cognizable harm under federal equal protection.81 Similarly, the circuit court for Waukesha County in Wisconsin cited Baker v. Carr and Gray v. Sanders to find that the voters had “a clear legal right to ensure that their votes are not cancelled or diluted by an ineligible person casting an unlawful vote.”82A month later, however, that same court vacated its decision.83
Both courts erred in analogizing this new form of “vote dilution” to the existing forms described above. Comparing hypothetical vote dilution claims with established vote dilution claims reveals how the former are really a misappropriation of the existing doctrine. As Professor Nicholas Stephanopoulos has explained, existing vote dilution claims “all involve methods of vote aggregation: how votes are tallied and then translated into seats.”84Malapportionment claims focus on electoral districts with unequal populations. Racial vote dilution claims target electoral schemes that diminish the influence of minority voters. And partisan gerrymandering claims challenge district line-drawing that “cracks and packs” voters based on their partisanship to maximize representation for the party in charge. These existing claims all share a common theme: “that a jurisdiction has reduced certain voters’ power by aggregating their votes in one way (at-large elections, unequally populated districts, gerrymandered districts) instead of in another (districted elections, equipopulous districts, fair districts).”85 They all involve someone’s “vote being weighed less (i.e., diluted) compared to those in other counties or election districts.”86
Hypothetical vote dilution claims, on the other hand, contend that a jurisdiction dilutes votes whenever legally cast ballots could hypothetically be offset by fraudulently cast ballots. In other words, plaintiffs “complain that the state is not imposing a restriction on someone else’s right to vote, which, they say, raises the risk of fraud, which, if it occurs, could dilute the value of [p]laintiffs’ vote.”87But, importantly, “[t]he consequence of this inverted theory of vote dilution is that all other votes are diluted in the same way; all feel the same effect.”88Thus, unlike existing vote dilution theories, hypothetical vote dilution “doesn’t operate by changing how votes are counted and then converted into representation.”89
The importance of this distinction cannot be overstated. Recall that all three recognized forms of vote dilution stem from the Equal Protection Clause of the U.S. Constitution.90 A necessary predicate for equal protection claims is differential treatment.91 In all three forms of recognized vote dilution, the differential treatment is based on how votes are aggregated and converted into representation. This “is the sort of equal-protection claim” that hypothetical vote dilution plaintiffs “purport to be asserting.”92But it “falls apart under scrutiny,” because plaintiffs do not (and cannot) allege that their votes “are diluted by a greater amount relative to” other lawful votes.93Even taking as true plaintiffs’ assertions that the challenged law or government inaction raises the risk of fraudulent votes, every voter in the electoral unit will be equally impacted.94
Given this disconnect between recognized and hypothetical vote dilution claims, the language plaintiffs sometimes cherry pick from cases involving malapportionment, racial vote dilution, or partisan gerrymandering is largely inapposite. Take for example the following oft-quoted language from Baker v. Carr: “A citizen’s right to a vote free of arbitrary impairment by state action has been judicially recognized as a right secured by the Constitution, when such impairment resulted from dilution by a false tally . . . or by a stuffing of the ballot box.”95 On first glance, this may seem to support a hypothetical vote dilution claim. But a deeper look reveals the statement is referring to scenarios entirely different from hypothetical vote dilution claims. The full quotation reads:
A citizen’s right to a vote free of arbitrary impairment by state action has been judicially recognized as a right secured by the Constitution, when such impairment resulted from dilution by a false tally, cf. United States v. Classic, 313 U.S. 299[]; or by a refusal to count votes from arbitrarily selected precincts, cf. United States v. Mosley, 238 U.S. 383[], or by a stuffing of the ballot box, cf. Ex parte Siebold, 100 U.S. 371[]; United States v. Saylor, 322 U.S. 385[].96
The cases cited here are each criminal cases in which the U.S. Supreme Court upheld or allowed (in various procedural postures) criminal prosecutions of state officials for election interference. In the 1879 case of Ex parte Siebold, for example, election judges were convicted for, among other things, stuffing ballot boxes with fraudulent votes with the intent to affect the election and its result.97
The other three cases—United States v. Classic (1941), United States v. Mosley (1915), and United States v. Saylor (1944)—all involved convictions under a criminal provision related to conspiracy to “injure, oppress, threaten, or intimidate any citizen in the free exercise or enjoyment” of any federal constitutional right.98In Classic, the Court held that the relevant law applied when election commissioners conducting a primary election “willfully altered and falsely counted and certified the ballots of voters.”99In Mosley, the provision applied to county election officials who conspired to omit the returns from certain precincts in their count of ballots and their returns to the state board of elections.100And in Saylor, the section applied to election officials who forged ballots and included them in the final tally, “so as to create a false and fictitious return respecting the votes lawfully cast.”101What this precedent makes clear is that election officials who willfully and corruptly attempt to sway the outcome of election interfere with citizens’ constitutionally protected right to vote. This is a fundamental proposition, but it offers little support for the idea that individuals have a constitutional right to demand restrictive voting that they hope will reduce the risk of private actors unlawfully casting fraudulent votes.
This also highlights a significant flaw in hypothetical vote dilution claims—the alleged fraud is speculative. Unlike the prosecutions for fraudulent conduct cited in Baker, hypothetical vote dilution claims do not allege fraud by state or local officials, but rather a risk of future fraud by third parties. When understood in this context, no fair reading of Baker invites constitutional challenges to laws meant to facilitate electoral participation on the grounds that private wrongdoers could conceivably exploit those laws to cast fraudulent votes in a future election.
Other language often quoted by plaintiffs has the same issue. In Reynolds v. Sims, the Court stated that “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.”102Similarly, in Gray v. Sanders, the Court wrote that “the right to have one’s vote counted . . . can be protected from the diluting effect of illegal ballots.”103But a look at those quotes in full and in context shows that they are referring and citing to the same sort of criminal cases as in Baker—cases of actual fraud prosecuted under federal law.104
Elsewhere, the Court in cases such as Baker and Reynolds made clear that its concept of dilution hinged on the differential voting power of qualified voters who had a right to be treated equally. As the Baker Court explained immediately before the passage often invoked by hypothetical vote dilution plaintiffs, “[t]he injury which” the plaintiffs assert is that the state’s apportionment plan “disfavors the voters in the counties in which they reside, placing them in a position of constitutionally unjustifiable inequality vis-a-vis voters in irrationally favored counties.”105 The Court found this injury sufficient to establish standing in the context of a malapportionment case because it amounted to an actual individualized injury, “not merely a claim of ‘the right possessed by every citizen ‘to require that the government be administered according to law.’’”106 In contrast, hypothetical vote dilution claims do not assert differential treatment or individualized injuries. Facilitation claims seek to invalidate state laws simply because those laws may allow fraudulent votes to be unlawfully cast, which would affect every member of the electorate evenly. Inaction claims similarly involve the sort of generalized grievance that federal courts and most state courts will not adjudicate: a bare assertion “of the right possessed by every citizen to require that the government be administered according to law.”107
State courts should keep this in mind when analyzing hypothetical vote dilution claims, either brought directly under state constitutions or relying on a dilution-as-harm theory of standing. A 2024 case from the Supreme Court of Delaware, Albence v. Mennella, illustrates how this analysis might look. The plaintiffs challenged two state laws allowing for absentee and early voting and contended that they were “harmed as Delaware voters because their votes would be diluted by illegally cast ballots.”108 The Supreme Court of Delaware rejected this theory of standing by distinguishing hypothetical vote dilution from traditional vote dilution claims:
Vote dilution has been defined as “reducing the effectiveness of certain people’s votes without actually preventing them from casting ballots.” Historically, the theory has been employed in malapportionment, racial vote dilution, and partisan gerrymandering cases. For example, in Baker v. Carr, the classic “‘one person, one vote’” case, the United States Supreme Court found that voters alleged sufficient facts to establish standing. They claimed that an apportionment statute resulted in “a gross disproportion of representation to voting population . . . [that] disfavors the voters in the counties in which they reside, placing them in a position of constitutionally unjustifiable inequality vis-à-vis voters in irrationally favored counties.” In other words, the “wrong that plaintiffs sought to vindicate in Baker . . . was the dilution of their vote relative to the vote of other citizens of the same state—a direct, cognizable injury.”
In the context of the Voting Rights Act, voting dilution “refers to the impermissible discriminatory effect that a multimember or other districting plan has when it operates to ‘cancel out or minimize the voting strength of racial groups.’” Partisan gerrymandering resembles racial vote dilution but creates districts with reference to partisanship instead of race. In each instance, unlike the plaintiffs’ standing claim here, standing is grounded in the discrimination of the influence of the plaintiff’s votes in relation to that of other voters. We do not see, and the plaintiffs have not endeavored to explain, how their vote-dilution claim maps on to these more traditional applications of the theory.109
In sum, state courts should be wary of plaintiffs’ efforts to use federal vote dilution case law to support hypothetical vote dilution claims. The theory behind hypothetical vote dilution claims differs significantly from traditional vote dilution claims, and the viability of the latter claims does not imply the viability of the former.
Beyond being legally tenuous, novel claims of hypothetical vote dilution are likely unnecessary given other well-established mechanisms for addressing actual or potential election fraud.
As a threshold matter, it is important to stress the rarity of actual voter fraud in recent U.S. elections. A report from the Brennan Center for Justice reviewed elections that had been studied for possible voter fraud and found that fraud occurred somewhere between 0.0003 and 0.0025 percent of the time.110Another comprehensive study found that between 2000 and 2014, there had been only about 31 credible incidents of voter fraud in the United States out of more than 1 billion ballots cast.111This helps to explain why some of the hypothetical vote dilution claims brought in 2020 failed in part based on lack of evidence.112
Still, state legislatures in every state have enacted laws to deter and punish actual voter fraud and other abuses of the electoral process by both private actors and government officials.113These laws include prohibitions against voting more than once in any given election, buying votes, or intimidating or coercing voters.114Election fraud is also a federal crime, punishable by a fine of up to $5,000 or up to five years in prison, which serves as a significant deterrent.115
But voters need not rely on prosecutors if they believe an election has or will be tainted by fraud. For example, in many states, individuals may challenge the voter registration of anyone whom they believe is ineligible.116Candidates who believe that the election in which they participated was improperly conducted based on evidence of fraudulent votes being cast may contest their election.117In some states, voters can do the same.118
Critically, unlike hypothetical vote dilution claims, which rely on courts accepting allegations that hypothetical fraud will occur and that the plaintiffs’ proposed remedies will prevent it, these mechanisms all require evidence of fraud before they discount ballots or place other barriers on the elective franchise.119
In the years ahead, state courts should expect to see more hypothetical vote dilution claims. It is thus critical that state courts understand how those claims diverge from existing vote dilution precedent. And given the foundational democratic commitments of state constitutions, state courts should be highly skeptical of arguments that a hypothetical risk of fraud constitutionally compels restrictive voting measures—measures that might themselves seriously undermine the rights of voters and the integrity of elections. Other legal mechanisms already exist to prevent and punish election fraud.