For the second time in less than a week, an appeals court in the United States has rejected a petition from the administration of President Donald Trump to set aside 20,000 ballots in California over concerns about non-citizen voting.
The decision arrived on Friday, with less than four days to go until the November 3 midterm elections.
The 9th Circuit Court of Appeals ruled that Trump’s request would not only violate the US Constitution but also risk disenfranchising eligible voters.
“The consequence of the United States’s request is not merely ballot segregation, but ultimately both the cancellation of the ballot and the removal of voters from the voting rolls,” the majority wrote in its ruling.
Two judges — Mark Bennett and Gabriel Sanchez — formed the majority. They were appointed by Trump and his Democratic predecessor Joe Biden, respectively.
A third judge, Trump appointee Patrick Bumatay, issued a dissent, calling the administration’s petition a “reasonable request”.
The Trump administration has claimed that nearly 20,000 “likely non-citizens” received mail-in ballots to vote in California’s midterm elections on November 3. It sued the state on October 15 to prevent those ballots from being counted.
But the accuracy of the Trump administration’s list has been called into doubt, as have its claims of widespread non-citizen voting.
Election fraud in the US is extremely rare. So is non-citizen voting, despite Trump’s assertion earlier this year that as many as 278,000 foreign nationals across the country were registered to cast a ballot.
Like California, states like Nevada and Washington have also received lists of alleged non-citizen voters, but officials there have found the documents to be largely inaccurate.
In Nevada, for instance, state authorities ultimately issued a statement in September saying that the Trump administration had erroneously identified citizens as non-citizens on its list. Not a single name was correct, according to the statement.
California is a Democratic stronghold, and on November 3, it will elect 52 members of the House of Representatives, one of Congress’s two chambers.
The state, however, has long been a target for criticism under Trump, who has accused its Democratic leadership of “cheating” in elections.
But California officials, including Governor Gavin Newsom, have countered that the Trump administration is seeking to meddle in the state’s elections to sow voter distrust and undermine the election results.
“This is a sad, desperate attempt by Trump to use his politicized Justice Department to try to suppress California voters,” Newsom said in a news release, following the October 15 lawsuit.
Non-citizen voting in federal elections is against the law in all 50 US states, including California.
The Constitution’s Election Clause also grants states the exclusive authority to administer elections, though it does allow for Congress to pass regulations concerning voting procedures.
The Trump administration initially sent California its list of 20,000 “likely non-citizens” on October 12, barely three weeks before the midterm election.
But California officials refused its demand to set aside the 20,000 ballots, requesting instead proof that the names on the list were indeed foreign nationals. According to the California government, no such evidence has been provided.
The Trump administration last week charged 28 foreign nationals in California with election-related infractions, but some of the accused told the Los Angeles Times they had never registered to vote.
The newspaper’s reporting suggested some of the non-citizen defendants shared the same name as eligible voters.
As the October 15 lawsuit navigated the court system earlier this month, the Trump administration sought an emergency ruling from the 9th Circuit Court to suspend the 20,000 ballots.
But the appeals court rejected that petition on Monday, saying that the Trump administration had not given lower courts adequate time to weigh the matter.
A lower court ultimately ruled against the Trump administration on Wednesday, and it again appealed to the 9th Circuit Court.
In its majority decision, the appeals court framed the Trump administration’s lawsuit as an attempt to violate the Constitution’s Election Clause.
“We decline the United States’s invitation to contravene the Elections Clause by undermining the Constitution’s plain text,” the majority wrote.
The majority also wrote that it had “major concerns” that granting the Trump administration’s request would “harm the public interest by risking the disenfranchisement of eligible voters and putting the entire tabulation process in jeopardy”.
