LOS ANGELES — A federal appeals court on Monday rejected the Justice Department’s emergency bid to force California to set aside mail ballots from more than 20,000 voters the Trump administration says are likely noncitizens, ruling 2–1 that the department went to the appeals court before the trial judge had decided anything.
Judges Mark Bennett and Gabriel Sanchez held that the 9th U.S. Circuit Court of Appeals had no authority to step in at this stage, calling the government’s claimed emergency “at least in part… a self-constructed one” and noting that the department had demanded a district court ruling within about 15 hours. Bennett, a Trump appointee, added in a concurrence that he would also have ruled against the department on the merits, writing that federal law does not displace the states’ primary authority over election administration; Sanchez warned that the requested order would upend the rules of an election already under way. Judge Patrick Bumatay dissented, arguing that ballots become untraceable once they are processed and mixed with others. California Attorney General Rob Bonta said the order protects Californians’ right to vote and the state’s authority to run its elections.
Bennett, an appointee of President Donald Trump, told the department’s lawyer that California appears to have legal authority to run its own elections, and that a federal criminal law barring noncitizens from voting does not by itself give the Justice Department authority to regulate California’s voting process, according to CNN’s account of the hearing. Bennett also said the lawsuit could not be reconciled with the Constitution’s Elections Clause, which gives state officials authority to set election procedures, according to Reuters. Bennett and Judge Gabriel Sanchez, a Biden appointee, also pressed the department on why it had appealed to the 9th Circuit before the district court in California, where the case was filed, had held a hearing, and on the reliability of the administration’s claim that 20,000 likely noncitizens are registered to vote in the state — a figure the department has said came from a purchased voter list analyzed by third parties.
The Justice Department filed the lawsuit on October 15 in federal court in Los Angeles. It asked a judge to order California to separate ballots received from people on the administration’s list from other ballots and not count them until the voters’ citizenship had been verified, according to Reuters. The department has warned election officials across California that they could face federal scrutiny if they refuse to help identify suspected noncitizens on the voter rolls, and it has distributed its list of 20,000 names to state officials.
California has responded that its safeguards against noncitizen voting are robust and that, in a court filing, the Justice Department’s assertions relied on suspect data, according to Reuters. Reuters noted that all available evidence indicates ineligible voting, including by noncitizens, is exceedingly rare: a Reuters investigation this year found just 129 cases in which noncitizens were federally charged with voting illegally, many apparently stemming from voter confusion or administrative errors rather than intentional fraud.
The California case is one of several election interventions by the administration while midterm voting is under way. This past week the Justice Department also sued in Alaska, seeking to block certification of the Senate result if the Republican incumbent loses, a step Zark News reported on October 25.
The ruling is procedural, not final: the case returns to U.S. District Judge David Carter, who has scheduled a hearing for Tuesday at 4 p.m. ET and has committed to ruling promptly. Until then, California will continue processing and counting ballots under its normal procedures, eight days before the November 3 midterms.
Updated Oct. 26: This article was updated after the 9th Circuit ruled 2–1 against the Justice Department’s emergency request. An earlier version reported the panel’s skepticism at Sunday’s hearing, before the ruling was issued.
