An appeals court on Monday declined to rule on whether California elections officials can count roughly 20,000 ballots that the Justice Department alleges likely belong to noncitizen voters.
The 2-1 decision sets the Trump administration and state officials up for another legal showdown on the matter on Tuesday in front of a federal district judge, giving the federal government a very short window to compel California to sequester votes before the Nov. 3 elections.
The decision marks the latest in a string of legal setbacks for President Donald Trump’s administration as it seeks to assert greater federal control over state-run elections. Noncitizen voting has been a central focus of Trump’s political messaging for years, although available data indicates it is exceedingly rare.
Although the panel primarily ruled it was premature for an appeals court to get involved, two of the three judges also wrote separate concurrences making it clear they wouldn’t support setting aside ballots at this late date. They questioned the accuracy of the federal government’s list of alleged noncitizen voters and argued that to set aside votes risks disenfranchising citizens.
One judge dissented, arguing that federal law bars noncitizens from voting and compels California to vet the potentially illegal ballots before they are counted. The failure to do so, he wrote, would cause irreparable harm to the election.
Trump administration sued California officials over list of 20,000 names
The Republican administration sued election officials in the heavily Democratic state in mid-October, accusing them of failing to meet a 48-hour deadline to review a list of 20,000 people it alleged were likely noncitizens on the state’s voter rolls. The administration asked the judge to stop the state from counting those ballots until immigration status checks could be completed. The Justice Department made similar demands Monday in Washington, another state with races that will help determine control of the U.S. Senate and House.
Both state and federal law prohibit noncitizens from voting. But California officials say it’s not even clear the administration’s purported 20,000 noncitizen voters are actually not U.S. citizens. In court papers, Los Angeles election officials said the majority of a random sample of voters that the Department of Justice identified as immigrants seemed to have been born in the United States. The Justice Department, for its part, has said there is as much to lose from keeping the potentially illegal ballots in the count.
After a district judge had scheduled an Oct. 27 hearing on the issue, the federal government appealed to the 9th Circuit Court, arguing that a faster decision was needed to prevent the further counting of votes.
But two of the three 9th Circuit Court judges rejected that argument on Monday, writing that the federal government “failed to allow the district court adequate opportunity to consider” their initial request to sequester the ballots in question.
The time-sensitive emergency that the federal government used to justify the appeal, wrote Gabriel Sanchez, a circuit judge appointed by President Joe Biden, was at least in part “the product of the United States’s own decisions” to file so close to the elections, after votes had already started to get counted.
The federal government was delayed “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,” Sanchez wrote.
One judge wrote that setting ballots aside would invite ‘electoral chaos’
He wrote that setting aside the ballots at this stage “would transform California’s election rules for an election that is already underway” and “usher in electoral chaos.”
Judge Mark J. Bennett, who was nominated by Trump, also said that the federal government’s arguments weren’t supported by the law, writing that it appeared the administration had no power under the Constitution to force California to separate the ballots.
Judge Patrick Bumatay, who was appointed by Trump, forcefully dissented against the ruling. He argued that federal law precludes “California from commingling ballots likely cast by aliens with legitimate ballots, because it encourages and induces illegal voting. Stopping that practice for those identified as likely noncitizens is the bare minimum.”
Bumatay also affirmed the federal government’s arguments about the need for an urgent ruling to sequester the ballots. While he conceded that the federal government could potentially prosecute fraudulent voters after the election, Bumatay said that the federal government “has an interest in stopping the illegal voting in the first place.”
California’s attorney general called ruling a ‘welcome speed bump’ against Trump’s attacks
California Attorney General Rob Bonta, a Democrat, hailed Monday’s ruling against the Republican administration as a “welcome speed bump to Trump’s disgusting attacks on the Constitution and our country’s democracy.”
In a statement, he urged voters to cast ballots early and “participate in democracy, don’t become disillusioned.”
The 9th Circuit decision sends the case back to a federal judge in Southern California, who will hear arguments from both sides on Tuesday at 1 pm.
Neither the Justice Department nor the Office of the U.S. Attorney in the Central District of California immediately responded to an emailed inquiry asking for comment.
