A federal appeals court on Monday threw out the Justice Department's emergency bid to force California to set aside the mail ballots of about 20,000 people the government calls likely noncitizens, ruling 2-1 that the department had jumped the gun by running to the appeals court before the trial judge had decided anything. The decision by a three-judge panel of the San Francisco-based 9th U.S. Circuit Court of Appeals means California keeps counting those ballots exactly as it has been, eight days before the November 3 midterm elections decide control of Congress.
What the department asked for was sweeping. In a lawsuit filed on October 15 in the U.S. District Court for the Central District of California, the United States sued the state, Secretary of State Shirley N. Weber and Los Angeles County Registrar-Recorder Dean C. Logan, demanding a court order that California and its counties segregate and refuse to tabulate vote-by-mail ballots cast by people on a federal list of more than 20,000 registered voters identified as likely noncitizens, until each person's citizenship could be verified. The case leans in part on the federal law, 18 U.S.C. Section 611(a), that bars noncitizens from voting in federal elections.
The emergency reached the appeals court by an abnormal route. The Justice Department demanded that U.S. District Judge David Carter rule on its request by noon on October 22; when he did not rule, the department took the highly unusual step of appealing the absence of an order, arguing the "critical and exigent nature" of the case justified it. The panel heard arguments in a rare emergency Sunday hearing held by videoconference, and ruled the next day.
The majority — Circuit Judge Mark Bennett, an appointee of President Trump, and Circuit Judge Gabriel Sanchez, an appointee of President Biden — held that the appeals court simply had no power to step in yet. "We lack jurisdiction over this appeal," the panel wrote, granting Los Angeles County's motion to dismiss the appeal and denying the government's emergency motion as moot. The judges added that a federal court order of this kind, mid-election, would dictate to a state "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."
The panel was bluntest about the department's timing. "The United States's claimed emergency, at least in part, is a self-constructed one," the majority wrote. "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."
Judge Bennett went further in a separate opinion, saying he would have rejected the demand on its merits even if the court had the power to hear it. "Even if I were to conclude we had jurisdiction over the appeal, and reach the merits, there are several reasons why I would deny the United States's emergency motion for injunctive relief pending appeal," he wrote. Among those reasons: the federal criminal law against noncitizen voting, he said, does not override the authority the Constitution's Elections Clause gives state legislatures over how elections are run, including how a state sorts out suspected noncitizen voters. At Sunday's hearing he had put it directly to the government's lawyer: "It seems to me that you want us to issue an injunction that is entirely inconsistent with the law. How can we do that?"
Judge Sanchez, also writing separately, stressed what the order would do to an election already underway. "The 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,'" he wrote. At the hearing, he questioned how counties could even match the federal names to ballot envelopes that carry only a name, address and signature: "My name is Gabriel Sanchez. I guarantee you there are many Gabriel Sanchezes in the county of Los Angeles."
The lone dissenter, Circuit Judge Patrick Bumatay, a Trump appointee, said he would have granted the department's request. "California's actions must be preempted," he wrote. At the hearing he had argued that everyone has an interest in ensuring only eligible citizens vote, and that without an order the truth could never be established: "Without an injunction, you will never know."
The fight is over a list the federal government built itself. The Justice Department says the Department of Homeland Security identified the more than 20,000 people by comparing California's voter rolls against federal databases, after a July letter from Homeland Security Secretary Markwayne Mullin had flagged roughly 190,000 California registrants as possible noncitizens. First Assistant U.S. Attorney Bill Essayli, whose office brought the suit, says the 20,000 names survived individual review by staff at U.S. Citizenship and Immigration Services and Homeland Security Investigations, and were delivered to California on a password-protected device with 48 hours to review before the government sued. "We believe it's at a minimum of 20,000. That's the floor," Essayli said. Justice Department officials said on October 19 that the 20,000 included 28 people who have been criminally charged with illegally voting. The department has not said how many of the 20,000 have actually returned a mail ballot.
California's answer is that the list does not hold up. Los Angeles County officials reviewed a sample of 200 records from it and reported finding canceled or inactive registrations, people with no voting history, and voters who appeared to have been born in the United States — which a county filing called "strong evidence of citizenship"; the registrar's office said about one in four people in the sample said they were born in the U.S. The county's lawyer told the panel that checking an expected 2.75 million mail ballots against the list at three minutes each would take 140,000 man-hours. Sam Siegel, representing Secretary Weber, told the judges the federal government had provided no credible evidence for its suspicions: "It has no basis in law or in fact. We just dispute the premise that noncitizens are voting." Weber herself, responding when the suit was filed, said the department's "relentless efforts to unlawfully gain access to states' protected voter data and purge voter rolls serve only to cause chaos and fuel public distrust in our elections."
The department, for its part, argues the harm of doing nothing cannot be undone. "Once a mail-in vote is processed, it cannot be unprocessed, and the damage is irreversible and irreparable," its lawyer told the panel. Essayli insists the request is modest: "We're not asking California to take any drastic steps other than to sequester the ballots from the suspected noncitizens."
The California case is the sharpest edge of a nationwide campaign. It is the first time the administration has asked a court to stop a state from counting votes, and it sits alongside Justice Department lawsuits against 30 states and Washington, D.C., demanding unredacted voter rolls — suits the department has so far lost 26 of, without winning one — and warnings that state officials could face prosecution for knowingly leaving noncitizens on the rolls. Lawyers for California answer that federal law also bars states from conducting mass voter-roll purges within 90 days of an election.
For now, the practical effect is simple: every mail ballot in California, including any cast by the 20,000 named voters, stays in the count for November 3. The case returns to Judge Carter, who hears arguments on Tuesday, and the panel gave the Justice Department until 7 p.m. Pacific on Monday to ask the full 9th Circuit to take up the matter; the department could also go to the Supreme Court, where Justice Elena Kagan handles emergency appeals from the circuit. Until a court orders otherwise, it is California's rules — a signed statement under oath accepted as proof of citizenship — that decide whose ballot counts, and the ruling is a reminder eight days out that, under the Constitution, the states still run America's elections.
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