A three-judge US Circuit Court of Appeals panel expressed significant skepticism Sunday over the Justice Department’s desire to inject itself into California’s midterm vote-counting process by forcing election officials to set aside the votes of suspected noncitizens who have been issued mail ballots.
During a highly unusual emergency hearing, 9th Circuit US Court of Appeals Judge Mark Bennett told a Justice Department attorney that California appears to have legal authority to handle its elections on its own, and that the fact that Congress passed a criminal law prohibiting noncitizens from voting in federal and state elections doesn’t mean the Justice Department has authority to regulate California’s voting process.
The legal action in California is one of many steps the Trump administration has taken as voting is underway in the midterm elections to try to help prove President Donald Trump’s baseless claims of massive voter fraud. This past week, the Justice Department filed a lawsuit in Alaska, seeking to block certification of the election of incumbent GOP Sen. Dan Sullivan loses, because a candidate named Daniel J. Sullivan is also on the ballot.
Bennett, a Trump appointee, and Judge Gabriel Sanchez, a Biden appointee, on Sunday both questioned the Justice Department’s decision to appeal to the 9th Circuit before the US District Court in California, where the case was originally filed, had held a hearing. They also pressed DOJ attorney Matthew Donnelly about the reliability of the Trump administration’s claims that there are 20,000 noncitizens on California’s voter rolls, information the DOJ has said came from a purchased list of voters and analyzed by third parties.
The Trump administration is attempting to convince the court that it should be able to immediately change California’s ballot processing because of a fear that noncitizens could have sent in votes. The state has already processed more than 300,000 midterm ballots.
But at least two of the three judges on the panel disputed the argument that federal law trumps the Constitution giving the power of running elections primarily to the states.
“It seems to me that under the Elections Clause, they have the right to determine the manner of the elections, including sorting out noncitizens,” Bennett said during the hearing, which was held over videoconference and broadcast on YouTube.
Judge Patrick Bumatay, a Trump appointee, appeared more sympathetic to the Trump administration’s argument, questioning attorneys for California and Los Angeles County about how noncitizens are investigated on the voter rolls. He also asked about DOJ’s suggestion in court filings that not setting aside mail-in ballots would keep California from ever learning whether noncitizens illegally voted in the midterms.
Sunday’s emergency hearing was the Trump administration’s sharpest effort to date to inject itself into a state’s midterm elections. DOJ sued California and Los Angeles County earlier this month, seeking to prevent officials from counting more than 20,000 mail-in ballots associated with people the government believes are likely noncitizens.
Samuel Siegal, an attorney arguing on behalf of California and the secretary of state, argued Sunday that the Justice Department was asking the court “to short-circuit the democratic process” while California’s election was already underway.
Beyond the constitutional issues, Bennett and Sanchez both questioned why the judges should rely on the Justice Department’s claims that 20,000 noncitizens were on the voter rolls, pressing Donnelly to explain how the administration came up with that number and why it should be relied upon to take extraordinary action.
“Your claims very much depend on the reliability of that list,” Sanchez said.
Siegal argued that the Trump administration’s list of alleged noncitizens voters was unreliable, saying it isn’t clear where the Trump administration’s list came from and that the data being used was “wildly outdated.”
“This is coming against the backdrop of the federal government compiling similar lists, and those also demonstrate having been demonstrably unreliable,” Siegal said.
Donnelly offered little clarity about why the administration believes 20,000 names on a list of California voters may include noncitizens, and how that list became part of the emergency hearing.
The Trump administration “was supplied a list that was purchased” from California, Donnelly said.
Donnelly argued that the DOJ’s briefs, including sworn declarations from Department of Homeland Security officials about their process for learning about noncitizen voters they say helped solidify the list, should be reliable enough to warrant segregating the ballots in question. He argued they are in an emergency situation because midterm ballots are being counted, and the administration isn’t asking to throw out votes and instead just set aside ballots the federal government would like to question.
The judges also questioned why the Justice Department took its case to the appellate court before the district court ruled. Donnelly responded that DOJ had asked for a ruling ahead of a hearing schedule for this week because more than 300,000 mail ballots had already been processed.
Bumatay questioned Siegal about whether California would be able to know whether noncitizens voted without an injunction, if the ballots are processed.
“We would respectfully disagree with that because of the number of steps that people have to take to attest to their citizenship,” Siegal argued.
Bennett asked Donnelly whether the appeals court needed to rule ahead of a planned hearing in district court Tuesday. Donnelly argued the court should rule as soon as possible, because voting is still ongoing in the state.
