A federal appeals court Monday denied an emergency request from the U.S. Justice Department to step in and block California election officials from counting about 20,000 ballots from voters whose citizenship the Trump administration has questioned.
The three-judge panel of the U.S. 9th Circuit Court of Appeals — composed of two judges appointed by President Trump and one by President Biden — ruled that it did not have jurisdiction over the request, given that a lower district court has not yet made a ruling on it.
But two of the three judges also wrote separately to make clear they also would have denied the Trump administration’s request on other grounds, if they did have jurisdiction.
In an unsigned order — joined by Judge Mark J. Bennett, one of the Trump appointees, and Judge Gabriel P. Sanchez, the Biden appointee — the court granted a request from Los Angeles County to dismiss the appeal, writing that the Trump administration “failed to allow the district court adequate opportunity to consider” its request for a temporary restraining order barring the ballots from being counted before filing its unusual appeal to the appellate panel.
The court found that the “emergency” the Trump administration asserted was in part a “self-constructed one” and that delays in the district court were partly attributable to its “own delay in filing suit, in realizing that existing California state law governs the issuance and processing of ballots, in recognizing that California has millions of registered voters and processes ballots on a schedule aligned with that scale, and in communicating to the court its desired relief.”
Both Bennett and Sanchez also each wrote a concurring opinion — in which they made clear that they would have denied the Trump administration’s request even if they did have jurisdiction, too.
Sanchez wrote that federal law would bar the court from issuing such a demand on state elections officials so close to an election.
“The United States seeks to have a federal court dictate to California the manner in which it must administer its own electoral process by segregating mail-in ballots and undertaking a citizenship verification process the State has never done before,” Sanchez wrote. “The proposed injunction would transform California’s election rules for an election that is already underway and would cause widespread confusion among voters and election officials, divert election administration resources, and ‘usher in electoral chaos.’”
Bennett wrote that he would have denied the Trump administration’s emergency request for several reasons beyond jurisdiction, including that it would be likely unconstitutional under the Elections Clause of the U.S. Constitution, which he wrote “confers broad authority only on Congress and the States, not the Executive,” and Congress has not acted to say that California’s existing laws for ensuring only U.S. citizens vote are problematic.
“Thus, under the Elections Clause, the legislature’s statutory scheme remains as the only method to do so,” Bennett wrote.
Bennett wrote that there are existing California laws to deal with the harm the Trump administration claims it is suffering, but that granting its request to intervene could “result in immense hardship” to the state “and harm the public by risking the disenfranchisement of eligible voters and putting the entire tabulation process in jeopardy.”
Bennett wrote that the Trump administration “offered no workable plan of any kind as to how the remedy it seeks could be accomplished in practice without potential catastrophic consequences to California’s ongoing election.”
Judge Patrick J. Bumatay, the other Trump appointee, dissented — arguing the Trump administration was well within its legal rights to intervene, and the appellate court did have jurisdiction to grant its request and bar the state “from accepting and processing ballots likely cast by aliens until their citizenship could be verified.”
“The question — does the federal government have the power to stop this potential attack on the integrity of our elections? Under both federal law and the Constitution, the answer must be ‘yes,’” Bumatay wrote. “Simply, the federal government has a sovereign interest in safeguarding federal elections and ensuring that the votes of noncitizens do not undermine our electoral results.”
The ruling clears the way for the lower court to proceed with a hearing scheduled Tuesday afternoon before U.S. District Judge David O. Carter in Los Angeles.
Carter, an appointee of President Clinton, previously rejected an attempt by the Trump administration to obtain California’s full voter rolls, calling that demand unlawful and a threat to democracy in January. Other federal judges made similar rulings in dozens of states across the country.
The question at issue Tuesday — and hashed over by the appellate court during oral arguments Sunday — is whether the courts should bar the state, Secretary of State Shirley Weber and Los Angeles County Registrar-Recorder/County Clerk Dean Logan from processing and tabulating the flagged ballots until they can provide to the Trump administration proof that those individuals are citizens.
The Trump administration has argued in court filings that the federal government is suffering irreparable harm each day such counting is allowed to continue, as once California ballots are removed from their mail envelopes or cast in person, there is “no way to associate the voter with the ballot” or resegregate those ballots from others.
More than 3 million ballots have already been cast in the upcoming Nov. 3 midterm elections statewide, and more than 500,000 have already been cast in L.A. County.
Attorneys for California, Weber and Logan have argued in court filings that the administration’s demands to segregate 20,000 ballots and vet those voters for citizenship with just days to go before the election are impossible to comply with and would cause catastrophic disruptions if elections officials across the state were forced to try.
They have also said the demands are clearly unconstitutional, illegal under state and federal law, and based on federal immigration and third-party data sets that have been shown to be deeply flawed, inaccurate and inclusive of legitimate voters.
While the appellate court’s formal ruling Monday adhered closely to the technical issue of jurisdiction, its conversation Sunday did not — with both Bennett and Sanchez expressing substantial doubts about the lawfulness of the Trump administration’s request, just as they did in their separate concurrences.
Bennett grilled Matthew Donnelly, the attorney for the Justice Department, on how the executive branch’s demands squared with the U.S. Constitution, which explicitly gives states the power to set laws regarding the time, place and manner of elections and Congress — not the executive branch — oversight over those laws.
Bennett said that while the Trump administration is “unhappy” with how California law ensures voters are citizens — namely by requiring that they attest to their citizenship upon registration — the state has the right to determine its election laws under the Elections Clause of the Constitution, and Congress has not challenged its process.
“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,” Bennett said. “How can we do that?”
Bennett and Sanchez both questioned how the appellate court could step in and adjudicate whether to grant the Trump administration’s request to intervene in the state’s election when it is not a fact-finding body, and the district court was never given a chance to develop a record of facts — including around the dueling and contradicting claims about the origins and reliability of the federal government’s list of “likely” noncitizen voters and the state’s claims that an order forcing them to segregate out the votes at this late stage in the election would cause catastrophic harm to the election process.
Carter is sure to pick those issues back up on Tuesday.