Appeals Judges Sound Doubtful in Rare Sunday Hearing on California Mail Ballots

A federal appeals court held an unusual weekend hearing on Sunday over the Trump administration’s demand that California hold back mail ballots cast by people the Justice Department suspects are not citizens, and two of the three judges on the panel signaled deep reservations about the request.

The case is before the 9th Circuit Court of Appeals. The government wants California to separate ballots returned by people on a list of roughly 20,000 registered voters it says are likely noncitizens, and to leave those ballots uncounted until their eligibility is verified. The department sued the state earlier this month in federal court in Los Angeles. A district judge there has scheduled a hearing for Tuesday, but the department asked the appeals court to step in first, arguing it could not wait.

Judge Mark Bennett, an appointee of President Trump, said the request appeared to conflict with California election law adopted under the Constitution’s Elections Clause, which leaves the running of elections largely to the states unless Congress acts, and he told the government’s lawyer that the Constitution did not authorize the relief the department was seeking, according to Reuters.

Judge Gabriel Sanchez, an appointee of President Biden, said he did not understand why the appeals court should rule before the trial judge had held his own hearing. The third judge, Patrick Bumatay, also a Trump appointee, pressed California’s lawyer on how anyone would know whether noncitizens had voted if no ballots were set aside, according to ABC News.

California’s lawyers told the court the federal list is unverified and includes people who are lawfully registered. In filings, the state has called its safeguards against noncitizen voting robust and said the department’s claims rest on unreliable data. State officials have also warned that segregating ballots now could seriously disrupt the count.

The government’s strongest point is a practical one: once a ballot is mixed into the count, an illegal vote cannot be pulled back out, so checking before counting is the only way to be sure. The department says about 28 people from its list have already been criminally charged with voting or immigration offenses, a small share of the 20,000 names.

The dispute is part of a broader push by the administration to scrutinize state voter rolls before the Nov. 3 midterm elections. The Justice Department has also warned California election officials that they could face federal scrutiny if they refuse to help identify suspected noncitizens on the voter rolls, Reuters reported.

The panel did not rule from the bench. Judge Bennett said the court would try to decide as quickly as possible, with mail ballots already being processed across the state and Election Day little more than a week away.