9th Circuit Judges Probe Justice Department Request to Halt Counting of 20,000 California Ballots
A three-judge panel of the 9th U.S. Circuit Court of Appeals questioned the Justice Department's emergency request to stop counting 20,000 California ballots flagged as possibly cast by non-citizens, raising concerns about constitutional authority and jurisdiction.
In a rare Sunday hearing, a three-judge panel of the U.S. 9th Circuit Court of Appeals examined the Justice Department's emergency request that California halt the counting of about 20,000 ballots flagged as potentially cast by non-citizen voters. The judges, including two appointed by President Trump and one appointed by President Biden, asked Justice Department attorney Matthew Donnelly how the administration’s position aligns with the Constitution and existing election law.
Judge Mark J. Bennett, a Trump appointee, noted that while the executive branch is "unhappy" with California's election requirements, the state retains the right to conduct its elections under the Elections Clause. He asked, ">It seems to me that you want us to issue an injunction that is entirely inconsistent with the law the California Legislature has adopted pursuant to the Elections Clause. How can we do that?"
Donnelly argued that federal criminal law and state law prohibit non-citizen voting and that the administration has reason to believe the flagged ballots belong to ineligible voters. He added that California has not enforced that provision, prompting the federal request.
The panel also raised jurisdictional questions, with Bennett asking, ">How do we have jurisdiction when the district court has said it’s going to rule expeditively? I don’t see how we have jurisdiction."
Judge Gabriel P. Sanchez, a Biden appointee, probed the source of the administration’s list, questioning its reliability after Donnelly could not identify the third-party data providers. Judge Patrick J. Bumatay, another Trump appointee, focused on potential damage from non-citizen voting and the state's procedures for addressing such claims.
California Deputy Solicitor General Samuel P. Siegel responded that there is "nothing" for the appellate court to review because no factual findings or lower-court order exist, and characterized the administration’s demands as unconstitutional. Attorneys for Los Angeles County Registrar-Recorder/County Clerk Dean Logan and Secretary of State Shirley Weber argued that the request is illegal, impossible to implement before the November 3 election, and based on flawed data.
The Justice Department had appealed after a district judge declined to grant an immediate temporary restraining order. In filings, the administration claimed that once ballots are removed from envelopes or cast in person, they cannot be linked to individual voters, justifying the request to set aside the flagged ballots.
Legal experts noted that the Justice Department’s intervention diverges from longstanding policy of avoiding election-related actions within 90 days of an election, and that the Constitution gives states primary authority over elections, not the executive branch. The panel has not issued a ruling, but a decision is expected soon given the emergency nature of the appeal.