Justice Department Faces Skeptical Appeals Court Panel In California Ballot Fight

A federal appeals court appears poised to reject the Justice Department’s last-minute bid to force California election workers to set aside ballots the Trump administration claims may be cast by noncitizens.

During an unusual Sunday argument session, a three-judge panel of the 9th Circuit Court of Appeals — featuring two Trump appointees and a Biden appointee — signaled that it sees serious flaws in DOJ’s demand for immediate action to separate any ballots submitted by voters on a 20,000-person list of suspected noncitizens on California’s voting rolls.

“It seems to me you want us to issue an injunction that is entirely inconsistent with the law the California Legislature has adopted,” Judge Mark Bennett, a Trump appointee, said. “How can we do that?”

“Congress and the California Legislature have said noncitizens can’t vote. This lawsuit is about, ‘We don’t like the way you’re sorting citizens from noncitizens,’” Bennett added. “I just don’t see [federal law] telling California how to do the sorting.”

Bennett’s rejection of the Trump administration’s position came alongside strong skepticism expressed by Biden appointee Gabriel Sanchez. The third judge on the panel, Trump appointee Patrick Bumatay, seemed more open to the administration’s position but raised pointed questions about arguments offered by both sides.

All three judges voiced concerns that the Justice Department rushed too quickly to the appeals court while a lower-court judge, Clinton appointee David Carter, was still weighing the matter.

The judges also sounded troubled that a last-minute court order upending California’s ballot-security procedures would run afoul of a two-decade old Supreme Court precedent that discourages federal courts from interfering with state election processes close to Election Day.

The impending setback comes amid heavy skepticism in the legal community over the DOJ’s eleventh-hour election-related moves, including a widely panned lawsuit against Alaska filed Friday that seeks to delay the certification of the state’s Senate election if incumbent GOP Sen. Dan Sullivan loses. President Donald Trump said Friday that he ordered the filing of the lawsuit.

During the almost two-hour-long argument held by videoconference in the California case, the Trump administration faced repeated questions about whether it moved with sufficient urgency to justify the emergency relief it is seeking. Bennett and Sanchez noted that in the first filings DOJ submitted, it asked for relief by Election Day, only to later insist that the district court needed to act within hours.

“You certainly knew that there was in your mind a problem well before that,” Bennett said.

Justice Department attorney Matthew Donnelly said federal officials didn’t understand just how quickly mail-in ballots were being processed until local officials provided tallies in court filings responsive to the federal suit.

“Frankly, we did not appreciate the scale,” Donnelly said. “We couldn’t wait that long for relief.”

But former Solicitor General Seth Waxman, representing Los Angeles County Registrar Dean Logan, called that argument “insulting” to federal officials.

“The numbers are publicly available,” Waxman said.

In addition, the judges raised doubts about whether the Trump administration’s demand for procedural changes to the way some California counties screen and tabulate ballots was technically feasible on such short notice.

“Their IT guy says they don’t have this process,” Bennett said of Los Angeles County. “They have to do all of these exceptional steps to deal with setting aside 20,000 ballots. He says they really can't do it at all without an extraordinary change in their processes, which could have this catastrophic impact.”

“We are happy to work with California to try and get the list that is easy to use,” Donnelly said. “They are not interested in working with us.”

Also at issue is the Justice Department’s claim that federal law overrides California’s procedures for screening out potential noncitizen voters. The Justice Department says a criminal law that makes it a misdemeanor crime for a noncitizen to cast a ballot in federal elections gives the administration license to demand the state alter its methods.

But an attorney for the state said nothing in that criminal statute upends the longstanding constitutional principle that ensures states are in control of their own election procedures. And the federal law itself, which the Trump administration has used to charge dozens of people in recent weeks, has rarely been used and is facing constitutional challenges in some district courts.

The lawyer representing California, Samuel Siegel, said the Justice Department simply doesn’t have the authority to change the state’s reliance on a prospective voter’s statement under oath that they are a citizen as sufficient to register. Indeed, federal laws limit states’ ability to demand more than that, the state’s attorney noted.

“If they want something beyond the attestation requirement, in the first instance, they need to go to Congress,” Siegel said.

Carter, a district court judge based in Santa Ana, has set a hearing for Tuesday on the government’s request for a restraining order. However, Bennett raised repeatedly Sunday the possibility that the federal government’s decision to file a preemptive appeal may have stripped Carter of authority while the appeal is pending.

Donnelly said the Justice Department’s position is that Carter can’t act while the appeal is pending. Just minutes after the argument concluded, DOJ filed another brief with Carter, asking him to “immediately” grant the federal government’s request. However, a footnote in the brief affirmed the department’s stance that he currently lacks jurisdiction to act.