A federal appeals court on Monday rejected the Trump administration’s unprecedented attempt to force California to set aside votes from 20,000 people it claims could be noncitizens.
The Justice Department’s lawsuit in California, filed earlier this month, is part of its escalating effort to insert the federal government into how states run their elections.
A three-judge panel on the 9th US Circuit Court of Appeals issued its 2-1 ruling turning away the Justice Department’s emergency appeal following arguments in an unusual emergency Sunday hearing held via Zoom.
Judge Mark Bennett, a Trump appointee, and Judge Gabriel Sanchez, a Biden appointee – ruled that the appeals court did not have the authority to rule on the DOJ lawsuit before the district court had addressed the matter.
“The United States’s claimed emergency, at least in part, is a self-constructed one,” the majority wrote, referring to the Justice Department’s arguments for why the appeals court could jump in now. “At least part of the delay here is attributable to the United States’s own delay in filing suit, in realizing that existing California state law governs the issuance and processing of ballots, in recognizing that California has millions of registered voters and processes ballots on a schedule aligned with that scale, and in communicating to the court its desired relief.”
A third judge on the panel, Trump appointee Judge Patrick Bumatay, dissented.
The decision sends the case back to the US District Court in California, where a Tuesday hearing is scheduled at 4 p.m. ET.
The Justice Department filed a lawsuit earlier this month seeking to prevent officials in California from counting more than 20,000 mail-in ballots associated with people the federal government says it believes are likely noncitizens. DOJ appealed to the 9th Circuit after the district court judge did not issue a ruling last week ahead of Tuesday’s hearing.
While the 9th Circuit judges ruled only on the procedural issues, two of the three judges on the panel expressed significant skepticism during Sunday’s hearing about the DOJ arguments on the merits of the case, too.
Bennett said in a concurring opinion that if the appeals court had the authority to resolve the lawsuit at this point, he would have ruled against the Justice Department on the merits of the case. He said there is nothing in the federal law in question “that preempts the states’ primary authority in election administration.”
“California can still (and in fact, it must) craft its own procedures governing Congressional elections and ballot challenges in those elections,” he wrote.
Bennett added that the action sought by the Justice Department “might result in immense hardship to Defendants and harm the public by risking the disenfranchisement of eligible voters and putting the entire tabulation process in jeopardy.”
The state and Los Angeles County argued Sunday that the Constitution grants the power to run elections mostly to the states, and that the Justice Department’s claims were based on unreliable lists of alleged noncitizen voters that were sent to the state while the election was already underway.
“The court’s order serves as an important step in our efforts to protect Californians’ right to vote and our state’s authority to run fair and secure elections,” the state’s attorney general Rob Bonta said in a statement Monday.
At Sunday’s hearing Bennett questioned why the courts should overrule California‘s procedures, when the Constitution gives primarily states the power to run elections, along with Congress, not the Executive Branch.
“It seems to me you want us to issue an injunction that is entirely inconsistent with the law that the California legislature has adopted pursuant to the Elections Clause. How can we do that?” he asked DOJ attorney Matthew Donnelly.
In a separate concurring opinion, Sanchez wrote that DOJ’s “proposed injunction would transform California’s election rules for an election that is already underway and would cause widespread confusion among voters and election officials, divert election administration resources, and ‘usher in electoral chaos.’”
“In the midst of an ongoing election, the United States asks the federal court to dictate to a state legislature a matter squarely within the state’s traditional domain, upending the state’s policies in this regard and inviting disorder and confusion for voters and election officials alike,” Sanchez wrote.
Sanchez asked pointed questions to Donnelly on Sunday about how the Justice Department and the Department of Homeland Security came up with its list of 20,000 voters, poking holes in gaps of the explanation the federal government provided in court filings.
Sanchez noted that sworn declarations from two DHS officials about the process for creating the list of 20,000 voters included references to “third-party data or reliable third-party analytics,” pressing Donnelly to provide more detail about what that is actually referring to.
Donnelly said he did not have that information about which third parties were used.
“You’re not able to explain who these third parties are that formed some part in the chain of analysis in this list,” Sanchez said. “And the reliability of the list very much – your claims very much depend on the reliability of that list.”
Sanchez also pressed Donnelly on the voter list that the federal government was relying on, as California, like most states, resisted the Justice Department’s demands to turn over its unredacted voter file.
Donnelly said that the federal government “was supplied a list that was purchased” originally from California, which was then used to find alleged noncitizen voters. Samuel Siegel, an attorney for the state of California, argued that the Trump administration was relying on data from a voter list that was “wildly outdated.”
Sanchez pointed to the issues he raised surrounding the federal government’s data to question why DOJ expected the district court to be able to rule on this issue so quickly.
“How was an injunction supposed to be entered in a matter of hours when there are so many factual issues that have to be unsurfaced in order to figure out whether there’s any merit to the government’s claims?” Sanchez asked.
In his dissent Monday night, Bumatay argued that the federal government must be allowed to stop noncitizens from voting.
“The question—does the federal government have the power to stop this potential attack on the integrity of our elections? Under both federal law and the Constitution, the answer must be ‘yes,’” he wrote. “None of California’s counterarguments prevent the federal government from stepping in and seeking to stop California from burying its head in the sand while aliens may be voting in federal elections.”
During Sunday’s hearing, Bumatay pressed attorneys for the state and county to explain how California verifies whether a voter is a citizen and sought details on the process that’s used.
“So not that extraordinary to ask California to verify citizenship of a voter, correct?” Bumatay asked.
“It is in the manner the federal government is asking here,” Siegel responded.
This story has been updated with additional details.
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