Appeals Court Rejects Justice Department Bid to Set Aside 20,000 California Ballots

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 registered voters the federal government says are likely noncitizens. The 2 to 1 ruling by a panel of the 9th U.S. Circuit Court of Appeals keeps California's normal ballot handling in place eight days before the November 3 midterm elections.

The panel held that it had no authority to step in before the district court has ruled, because the Justice Department went to the appeals court before the trial judge had a fair chance to act. It did not rule on the government's claims about the voters on its list.

The ruling

Judge Mark Bennett, an appointee of President Donald Trump, and Judge Gabriel Sanchez, an appointee of President Joe Biden, formed the majority. Judge Patrick Bumatay, a Trump appointee, dissented.

"The United States's claimed emergency, at least in part, is a self-constructed one," the majority wrote. The judges said part of the delay came from the government's own timing: its delay in filing suit, in recognizing that California state law governs how ballots are issued and processed, and in telling the court what relief it wanted. The government gave the district court roughly 15 hours, including about three business hours, to rule before it filed the emergency appeal, USA Today reported.

Bennett wrote separately that he would also have denied the government's request on the merits. Sanchez wrote that the order the government wanted "would transform California's election rules for an election that is already underway."

How the case reached the appeals court

The Justice Department sued California and Los Angeles County on October 15, asking the court to stop the state from counting mail ballots cast by people on a federal list of more than 20,000 registered voters the government believes are likely noncitizens, until their citizenship could be checked. Reuters reported that the suit was the first time the administration has tried to prevent a state from counting votes at all. The department has not said how many people on the list have actually submitted a mail ballot. On October 19, department officials said the list included 28 people who had been criminally charged with voting illegally.

The district court set a hearing for Tuesday but did not rule last week. The Justice Department then took its emergency request to the 9th Circuit, which heard arguments on Sunday in an unusual emergency hearing held by video.

What happens next

The case returns to the U.S. District Court for the Central District of California, where a hearing is scheduled for Tuesday, October 27, at 4 p.m. Eastern time. The district judge will take up the government's request for an order setting the ballots aside while the suit goes forward. The Justice Department could also ask the full 9th Circuit or the U.S. Supreme Court to intervene, although Monday's ruling dealt with procedure and did not reach the merits of the dispute.

The wider election fight

The California case is one part of a broader push by the Trump administration to give the federal government a larger role in how states run elections. Republicans are fighting to keep control of Congress in the November 3 midterms. California holds 52 seats in the House of Representatives, more than any other state, and Democrats are trying to win back the House majority. California officials have disputed the reliability of the federal list and say election administration belongs to the states under the Constitution.