In a rare Sunday hearing, a federal appeals court judge appointed by President Trump questioned how the Trump administration’s request to intervene in California’s ongoing midterm election in order to force state officials to set aside 20,000 ballots from voters whose citizenship it questions squares with the U.S. Constitution.
Judge Mark J. Bennett said that while the executive branch is “unhappy” with what California law requires for ensuring voters are citizens, the state has the right to determine the manner of its elections under the Elections Clause of the Constitution and Congress has not challenged that process, despite having the ability to do so.
“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?”
Matthew Donnelly, a Justice Department attorney, said the Trump administration has good reason to believe those ballots are from ineligible noncitizen voters, and has the legal right under seperate federal criminal law to challenge their tabulation until state officials can prove otherwise.
Donnelly said both federal criminal law and state election law bar noncitizen voters from casting ballots, but “the problem is that California isn’t interested in enforcing that provision.”
The exchange came during an hour-long hearing before a three-judge panel of the U.S. 9th Circuit Court of Appeals, over the Justice Department’s unprecedented emergency request that the court order California Secretary of State Shirley Weber and Los Angeles County Registrar-Recorder/County Clerk Dean Logan to immediately stop counting ballots from the 20,000 flagged voters until they can definitively prove those voters are U.S. citizens.
The appellate panel — on which Bennett was joined by circuit Judges Patrick J. Bumatay, another Trump appointee, and Gabriel P. Sanchez, an appointee of President Biden — did not issue a ruling, though a decision is expected soon given the emergency nature of the appeal.
How it will rule is unclear, though both Bennett and Sanchez hammered Donnelly with questions about how the Trump administration’s position squared with the law.
Rick Hasen, director of the Safeguarding Democracy Project at UCLA School of Law, wrote online Sunday that the court seemed “very likely to reject” the Trump administration’s appeal, with Bennett and Sanchez having “expressed great skepticism on both jurisdiction and the merits.”
In addition to questioning its constitutionality, Bennett also questioned how the appellate court even had jurisdiction over the case, given that the Trump administration appealed the matter to the appellate court before the lower district court had a chance to assess the facts in the case or issue an order.
“How do we have jurisdiction when the district court has said it’s going to rule expeditiously?” Bennett said. “I don’t see how we have jurisdiction.”
Bennett also questioned why the appellate court should ignore the claims of state elections officials that having to comply with the Trump administration’s demands in the few remaining days before the Nov. 3 election would be catastrophically disruptive to the election, given that the lower court has had no chance to assess those claims.
“Isn’t that sufficient to give us pause as to whether we should do exactly what [a state expert] avers is going to cause a catastrophe?” Bennett asked.
Bennett’s questions evoked many of the arguments made by the state in its own filings in the matter, which were repeated by California Deputy Solicitor Gen. Samuel P. Siegel during the hearing.
Siegel said there was “nothing” for the appellate court to review, given there has been no fact finding and no order out of the lower court, and that the administration’s demands were unconstitutional and illegal. He said the court did not have to wrestle with many of the arguments being put forward by the Trump administration, because it should simply reject the appeal for lack of jurisdiction and send the matter back down to the lower court.
Bumatay appeared most interested of the three judges in the damage done when noncitizens do vote, and the underlying question of how the state should handle objections to alleged noncitizen voters when they arise.
Siegel and Seth Waxman, an attorney for Logan, said there are existing processes for that — which require the challenger to present extraordinary proof, which they said the Trump administration has not done for the 20,000 voters it has flagged.
Sanchez repeatedly questioned the provenance of the administration’s list, asking which third parties were involved in providing the data. Donnelly could not answer, which Sanchez said raised questions about the reliability of the list.
The Justice Department appealed the case after a lower district court judge declined to immediately rule last week on its request for a temporary restraining order barring California officials from tabulating the flagged ballots.
In court filings, the administration argued that once mail ballots are removed from their envelopes in California, or a ballot has been cast in person, there is “no way to associate the voter with the ballot” or resegregate it from other cast ballots.
Attorneys for California, Weber and Logan have argued the demands are illegal, impossible to comply with before the Nov. 3 election and based on deeply flawed federal immigration and third-party data sets shown to be inaccurate and inclusive of legitimate voters.
In court filings, they have argued that the Trump administration’s argument “rests on mere suspicion, aroused by suspect data,” and that its lawsuit is at best “a reckless political stunt” and at worst “threatens to disenfranchise thousands of Californians this election.”
Independent elections experts have said the Justice Department’s efforts break with longstanding department policy of not wading into election-related issues within 90 days of an election, to avoid disenfranchising legitimate voters.
They also have said the Trump administration’s lists of alleged noncitizen voters and its authority to intervene are both questionable, including because the U.S. Constitution empowers states to run elections with oversight from Congress, not the executive branch.
The Justice Department sued California, Weber and Logan on Oct. 15, two days after Acting Deputy Atty. Gen. Trent McCotter wrote to Weber and Logan giving them 48 hours to set aside the ballots for the 20,000 flagged voters — whom McCotter claimed were “likely noncitizens.”
First Assistant U.S. Atty. Bill Essayli, the lead federal prosecutor in L.A., has claimed federal authorities have “overwhelming evidence” that tens of thousands of noncitizens are registered to vote in California, and has defended the methods used to identify those voters. He and other federal prosecutors in the state also recently charged 28 legal permanent residents in California with election-related crimes, including illegally registering to vote.
On Friday, the Justice Department sent letters to county elections offices statewide with demands that they segregate ballots from voters the Trump administration believes are noncitizens, drawing from the same list of 20,000 at issue in the case against Weber and Logan. In those letters, the Justice Department gave the county officials 48 hours to comply, and threatened them with criminal punishment if they refuse.
State officials have said neither Essayli nor other Trump administration officials have provided proof to back up their claims, and that their list of 20,000 voters is clearly inaccurate. Logan said a preliminary review of a subset of those voters found many were born in the U.S., weren’t registered and had never voted.
More than 3 million people have already cast ballots in California — and more than 500,000 have already done so in Los Angeles County.
The challenge to the 20,000 ballots in California is just the latest Trump administration attempt to intervene in state-run elections ahead of the midterms.
Federal judges in dozens of states have rejected Justice Department lawsuits demanding the states turn over their voter rolls to the Trump administration. Federal judges also have rejected multiple Trump executive orders trying to institute national voter ID and citizenship checks, and his administration’s attempt to empower the U.S. Postal Service to vet mail ballots.
Other cases — including over the Trump administration using unproven and inaccurate federal data sets to question the citizenship of state voters — are pending.
Democrats and voting rights groups are also bracing for fresh litigation from the Trump administration to challenge the outcome of pivotal election results the president doesn’t like — and are already defending against a lawsuit the Justice Department brought at Trump’s urging in Alaska, preemptively challenging a Democratic win in the Senate race there based on a third candidate sharing a similar name as the Republican incumbent.
Times staff writer Brittny Mejia contributed to this report.