Court Dismisses Justice Department Appeal to Set Aside 20,000 California Ballots

A federal appeals court on Monday rejected the Trump administration’s attempt to force California to set aside mail ballots from about 20,000 voters the Justice Department suspects are not citizens, dealing the government a setback a week before the Nov. 3 midterm elections.

A three-judge panel of the 9th Circuit Court of Appeals ruled 2-1 that it lacked jurisdiction and dismissed the department’s appeal, according to CBS News and NBC News. The majority said the government had not given the trial judge in Los Angeles an adequate opportunity to consider its request before running to the appeals court.

The panel was pointed about the timing. CBS News reported that the court described the government’s claimed emergency as, at least in part, self-constructed, noting that the department filed suit less than three weeks before the election and sought emergency relief only the week before.

Judge Mark Bennett, an appointee of President Trump, and Judge Gabriel Sanchez, an appointee of President Biden, formed the majority, and each wrote a separate concurring opinion. Bennett wrote that he would have rejected the request on its merits anyway, according to CBS News. Sanchez wrote that the government was asking a federal court to dictate to a state legislature on a matter traditionally left to the states, NBC News reported.

Judge Patrick Bumatay, also a Trump appointee, dissented. He argued that the federal government has a sovereign interest in protecting federal elections from votes cast by noncitizens, and that it can act to defend that interest. That is the strongest version of the administration’s case: if ineligible ballots are counted, there is no way to remove them afterward.

The lawsuit, filed Oct. 15, asks that California separate ballots from people on the department’s list and not count them until their citizenship is confirmed. California officials have called the list unverified and say it includes lawful voters, and Los Angeles County officials said in an Oct. 15 letter that the department had not explained how the list was compiled. Justice Department officials have said 28 people on the list have been criminally charged with illegal voting.

California officials welcomed the ruling as “a positive development and a welcome speed bump to Trump’s disgusting attacks on the Constitution.” CBS News attributed that remark to Gov. Gavin Newsom, while NBC News attributed it to Attorney General Rob Bonta.

The case now returns to District Judge David O. Carter, who had scheduled a hearing for Tuesday. CBS News reported that the government could also ask the full appeals court to reconsider. Federal prosecutors sent similar letters last week to at least 18 other California county registrars demanding that ballots from suspected noncitizens be set aside.

The broader effort is continuing. The administration has devoted significant resources to searching state voter rolls for noncitizens, and the president on Monday offered a $1 million reward for tips leading to voter fraud convictions, according to NBC News and ABC News.