9th Circuit Questions DOJ Bid to Set Aside 20,000 California Ballots

A panel of the 9th U.S. Circuit Court of Appeals questioned Sunday whether the Justice Department can force California election officials to withhold roughly 20,000 mail ballots while voters' citizenship is checked. The court did not issue a ruling after the weekend arguments.

The Department of Justice sued California officials in mid-October, accusing the state of missing a 48-hour deadline to review 20,000 names the federal government identified as likely noncitizens on voter rolls. The administration sought a federal order requiring the state to set those ballots aside pending verification.

A district judge set a hearing for Oct. 27. The federal government appealed instead to the 9th Circuit for an expedited decision. Two of the three judges on the panel questioned the timing of the request. Circuit Judge Mark Bennett, a Trump appointee, asked whether the appellate court has jurisdiction to hear the case before the lower court has ruled.

Justice Department attorney Matthew Donnelly told the court that allowing the ballots to be counted would cause irreparable harm. "The damage is irreversible and irrevocable," he said. Judge Gabriel Sanchez, an appointee of former President Joe Biden, asked whether the federal request violates the Tenth Amendment by requiring California to enforce federal law.

Donnelly responded that California bans noncitizen voting under its own law and that the state's refusal to set the ballots aside was "frustrating the purpose" of the federal statute against noncitizen voting. Bennett noted that the Constitution's Elections Clause gives state legislatures authority over the time, place and manner of congressional elections. "The executive branch may be unhappy with what they're doing, and doesn't like the manner," Bennett said.

Attorney Seth Waxman, representing Los Angeles County Clerk Dean Logan, said the federal list is unreliable. He said checking 2.75 million expected mail ballots against the list at three minutes per record would take 140,000 work-hours, or about 16 years. Los Angeles County staff reviewed 200 records from the federal list, and Assistant Registrar-Recorder Monica Flores said in a court filing that the sample contained canceled or inactive registrations, people with no voting history, and voters who appeared to have been born in the United States, which the filing called "strong evidence of citizenship."

Sam Siegel, representing California Secretary of State Shirley Weber, said the federal government has provided no credible evidence supporting its suspicions. "It has no basis in law or in fact," Siegel told the panel. "We just dispute the premise that noncitizens are voting."

Judge Patrick Bumatay, a Trump appointee, said everyone has an interest in ensuring only eligible citizens vote and suggested an emergency order could provide clarity. "Without an injunction, you will never know" if that is happening, Bumatay told Siegel. Bennett said the panel would try to issue a ruling as quickly as possible.