9th Circuit Declines Justice Department Appeal, Allowing California Ballot Count to Proceed

A three-judge panel of the U.S. 9th Circuit Court of Appeals on Monday rejected an emergency request from the Justice Department to halt the counting of about 20,000 ballots in Los Angeles County that the administration says may have been cast by non-citizens. The panel said it did not have jurisdiction because the district court has not yet ruled on the matter, and it dismissed the appeal for procedural reasons.

In an unsigned order joined by Judge Mark J. Bennett and Judge Gabriel P. Sanchez, the court noted that the Justice Department had not given the district court adequate opportunity to consider its request for a temporary restraining order before filing the appeal. The judges also wrote separate concurring opinions indicating they would have denied the request even if jurisdiction had been established.

"Federal law would bar the court from issuing such a demand on state election officials so close to an election, as doing so would transform California’s election rules for an election that is already underway and would cause widespread confusion among voters and election officials," wrote Judge Sanchez.

"The Elections Clause gives authority only to Congress and the states to run elections, not the executive branch," Judge Bennett added, noting that the administration offered no workable plan for implementing its proposed remedy.

Judge Patrick J. Bumatay, the third panel member, dissented, arguing that the federal government has a sovereign interest in safeguarding elections and that the administration was within its legal rights to intervene.

The ruling allows the district court to move forward with a hearing scheduled for Tuesday afternoon before U.S. District Judge David O. Carter in Los Angeles. California Attorney General Rob Bonta called the decision an important step in protecting voters’ rights and state election authority. The U.S. attorney’s office in Los Angeles declined to comment.

The pending question is whether the state, represented by Secretary of State Shirley Weber and Los Angeles County Registrar-Recorder/County Clerk Dean Logan, must halt processing of the flagged ballots until citizenship can be verified, a request the administration says is necessary to prevent alleged harm to federal elections.