A divided federal appeals court on Monday dismissed the Justice Department’s emergency bid to force California to set aside about 20,000 mail ballots from voters the Trump administration says are likely noncitizens.
The 2-1 order from the 9th U.S. Circuit Court of Appeals found the court lacked jurisdiction because the government “failed to allow the district court adequate opportunity to consider” its request for a temporary restraining order.
That clears the way for U.S. District Judge David O. Carter, a Clinton appointee in Los Angeles, to hold a hearing Tuesday afternoon on the government’s request for a temporary restraining order.
Judge Mark Bennett, a Trump appointee, and Judge Gabriel Sanchez, a Biden appointee, formed the majority. Judge Patrick Bumatay, also appointed by President Donald Trump, dissented.
The majority faulted the government’s timing. “The United States’s claimed emergency, at least in part, is a self-constructed one,” the unsigned order said, pointing to the department’s “own delay in filing suit.”
It also faulted the department for being slow in “recognizing that California has millions of registered voters and processes ballots on a schedule aligned with that scale.”
Dissent Backs Federal Power
Bumatay argued the court did have jurisdiction and should have barred the state “from accepting and processing ballots likely cast by aliens until their citizenship could be verified,” the Los Angeles Times reported.
“The question — does the federal government have the power to stop this potential attack on the integrity of our elections? Under both federal law and the Constitution, the answer must be ‘yes,'” he wrote.
Bennett and Sanchez each wrote separately to say they would have rejected the request on the merits. Bennett said the Constitution’s Elections Clause gives authority over elections to Congress and the states, not the executive branch.
Bennett also wrote that the government “offered no workable plan of any kind” for carrying out its request “without potential catastrophic consequences to California’s ongoing election.”
Sanchez warned that such an order “would transform California’s election rules for an election that is already underway” and could “usher in electoral chaos.”
The dispute began this month, when Acting Deputy Attorney General Trent McCotter gave California and Los Angeles County 48 hours to review a list of more than 20,000 registered voters the administration considers “likely” noncitizens, CBS News reported.
Carter scheduled a hearing rather than ruling immediately. The next day, the department appealed, arguing his “silence” amounted to a “constructive denial” of its bid to have the ballots set aside.
Los Angeles County says the list includes 7,035 records with county addresses. A review of 200 of them found 112 tied to canceled or inactive registrations, meaning no ballot was mailed.
More than a quarter of the sampled records listed a U.S. birthplace, a county election official said. On Friday, federal prosecutors sent similar lists to at least 18 more California county registrars.
The panel gave the government until 7 p.m. Pacific time Monday to ask the full 9th Circuit to reconsider. It was not immediately clear whether the department did so.
Gov. Gavin Newsom called the ruling “a welcome speed bump to Trump’s disgusting attacks on the Constitution and our country’s democracy.” More than 3 million ballots have already been cast statewide ahead of the Nov. 3 election.
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