A conservative group opposed to mass voting by mail is using millions of unused ballots in California – one of eight states that conducts all-mail elections — to make a misleading claim.

A recent report by the Public Interest Legal Foundation, a group that has been critical of mail voting, said that in California, there were "10 million mail ballots unaccounted for" in the November midterm election. 

The Public Interest Legal Foundation is chaired by Cleta Mitchell, who, as a lawyer for former President Donald Trump’s campaign, was on the phone with Trump when he asked Georgia’s secretary of state to "find" enough votes to overturn Joe Biden’s victory in that state.

The report was cited in headlines and articles on several conservative media sites, including Breitbart, The Daily Signal and The Epoch Times. 

The headlines also were shared in social media posts that were flagged as part of Facebook’s efforts to combat false news and misinformation on its News Feed. (Read more about our partnership with Meta, which owns Facebook and Instagram.)

Election officials and experts said the ballots are not considered to be "unaccounted for" and are not evidence of a problem, as the report’s language implies. They are simply ballots that voters didn’t cast. 

California election officials sent out about 22 million ballots in November’s midterm election, and about 9.8 million votes were cast by mail. And 1.4 million more voters cast ballots in person. 

The insinuation that the state can’t account for the remaining ballots misleads about how elections work. Only about 51% of registered voters cast ballots in California in November, which is not unusual in a midterm election. And experts say there’s no expectation that unused ballots would need to be accounted for or returned.

California began sending mail ballots to every active registered voter in the 2020 election during the height of the COVID-19 pandemic. A law Gov. Gavin Newsom signed in 2021 made that a permanent practice.

The Public Interest Legal Foundation’s report used data from a California election report about rejected ballots, which shows 22,184,707 ballots were mailed out and 9,781,328 were accepted. The state data said 120,432 more mail ballots were rejected for several reasons, including arriving past the deadline to be counted.

California’s "Statement of Vote" said that 1,391,422 Californians decided to vote in person, which remains an option in the state, even for voters who received a mail ballot. Voters do not need to bring their unused mail ballots to vote in person, but some election officials may ask these voters to fill out provisional ballots that will be counted after confirmation their mail ballots weren’t used.  

The foundation said the remaining ballots, which it numbered at 10,891,525, are "unaccounted for." 

The official certified tally showed about 10.6 million unreturned ballots.

Regardless of the exact number, election officials and experts disagreed with the Public Interest Legal Foundation’s conclusion that unreturned ballots are not accounted for. Those are ballots that simply were not cast, and it was expected that many wouldn’t be returned, they said. 

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Joe Kocurek, deputy secretary for communications for California Secretary of State Shirley Weber, said he’s unsure "what ‘unaccounted for’ is supposed to mean."

"In every election, people choose not to vote. Counties mailed ballots to active registered voters at their most recent address on file. Security measures include a unique number assigned to each ballot and the verification of the voter’s signature with one on file, so those ballots were not cast," Kocurek said.

Voters have tools to track their ballot status after it’s returned and can request a replacement ballot if they never received one. A replacement ballot is subject to verification that the missing ballot was not already cast, Kocurek said.

After leading with a headline about rejected mail ballots and 10 million being unaccounted for, the Public Interest Legal Foundation said further down in its report that it’s "fair to assume that the bulk of these were ignored or ultimately thrown out by the intended recipients."

But the report also implies something nefarious could have happened, saying, "We can only assume what happened." Some ballots may have been delivered to the wrong address or withheld from the recipients by someone else at the same address, it said.

When contacted for comment, Lauren Bowman, a Public Interest Legal Foundation spokesperson, said that some of the ballots that weren’t returned "probably ended up in landfills," and that "millions of ballots should not be in trash cans and recycling bins while an election is taking place." 

Experts we contacted said they do not consider unreturned ballots to be missing or unaccounted for. The U.S. Election Assistance Commission refers to unreturned ballots as "unknown," PolitiFact reported in 2020 after a similar claim about missing ballots by J. Christian Adams, the Public Interest Legal Foundation's president and general counsel.

Kim Alexander, president and founder of the California Voter Foundation, an advocacy group that aims to improve the election process, said most of the unreturned ballots were likely simply discarded.

Alexander said although the state can’t know specifically what happened to them, "we have a pretty good idea about what happened to those ballots. Most of them ended up in the trash or recycling bin," she said.

Alexander said the state has a "number of very good safeguards in place to ensure nobody has voted twice."

Alexander said that counties try to keep voters’ information up to date, but that’s challenging in a state where many people frequently change their address, including college students and homeless people. 

"It is definitely true that some ballots do not reach voters, and these typically come back to the elections office," she said.

The foundation noted that some ballots were rejected because they were missing signatures on the envelopes or arrived past the receipt deadline. Alexander said these are common mistakes for voters new to voting by mail.

"These problems with ballots being rejected are not a sign of fraud or attempted fraud," she said. They are "examples of the complexity of the vote-by-mail process and voters' unfamiliarity with some of the intricate details."

The Public Interest Legal Foundation said in California, "10 million mail ballots (were) unaccounted for" in the November midterm election. 

California sends mail ballots to all active registered voters. The California secretary of state’s office and election experts said the 10 million are simply ballots that were not used or returned by voters. They do not consider the ballots to be unaccounted for or missing. 

We rate this claim False.