9th circuit

WASHINGTON  — On the day before the midterm election, Trump administration lawyers asked the Supreme Court to intervene and set aside ballots from 20,000 California voters who the administration says may not be citizens.

Solicitor Gen. D. John Sauer filed an emergency appeal on Monday.

“The Court should issue a limited injunction directing California to stop commingling suspected illegal ballots with legal ones,” he wrote, “pending completion of the United States’ appeal to the 9th Circuit and further review in this Court.”

He said the court should require “California to segregate mail ballots from persons whom the United States has identified as likely non-citizens. The court should also enter an administrative injunction to that effect while it considers this application.”

It’s not clear whether the court will see this as an emergency.

The appeal goes first to Justice Elena Kagan. She could ask for a response from California, which would take days.

So far, the administration has lost before a federal judge in Los Angeles and twice at the 9th Circuit Court of Appeals in San Francisco.

Those judges said that Trump’s lawyers were wrong on the Constitution and that their complaint came too late for this election.

In May, more than 23 million Californians were registered to vote, and the majority lean in favor of Democrats. But Trump claimed again last week “there are hundreds of thousands of bad ballots, bad votes, in California. Millions, in my opinion.”

In mid-October, the Trump administration sued and said federal courts should require California and Los Angeles County to “set aside vote-by-mail ballots from persons identified by the federal government likely to be non-citizens.”

Federal law says that within 90 days of an election, officials may not “systematically remove the names of ineligible voters from the official lists of eligible voters.”

Separately, the Supreme Court also has repeatedly frowned on “late-breaking, court-ordered rule changes” involving elections.

The California court cases have also put a spotlight on the state vs. federal divide in election law.

Usually, federal laws are deemed to be the “supreme law” and override state laws that are in conflict. No one disputes U.S. prosecutors may bring criminal fraud charges against noncitizens who violate a federal law by registering with a state to vote and casting an illegal ballot.

But election rules and procedures are different. The Constitution says “the Times, Places and Manner of holding elections for Senators and Representatives shall be prescribed in each state,” unless Congress acts by law to “alter” its regulations.

The 9th Circuit judges in Friday’s opinion said that “this clause expressly dictates which sovereign has the authority to prescribe the manner in which congressional elections are conducted.”

“If the United States believes different procedures are necessary for vote-by-mail ballots, we believe it should take that suggestion to Congress, not the courts,” said Judges Mark J. Bennett, a Trump appointee, and Gabriel P. Sanchez, a Biden appointee.

Dissenting Judge Patrick J. Bumatay, a Trump appointee, called the administration’s proposal to separate the 20,000 ballots a “reasonable request” and a “modest remedy” for the problem of illegal voting.

The majority cited a 2013 opinion written by the late Justice Antonin Scalia.

“The Elections Clause functions as a default provision,” he wrote. “It invests the states with responsibility for the mechanics of congressional elections,” unless Congress adopts a different rule.

Scalia spoke for a 7-2 majority that rejected an Arizona law that required voters to show documentary proof of their citizenship when registering to vote. In the National Voter Registration Act of 1993, Congress said voters may register to vote by filling out a form and attesting under oath they are citizens.

California does the same under state law.

Scalia said the federal voter registration law did not allow Arizona to adopt new and stricter rules.

In dissent, conservative Justices Clarence Thomas and Samuel A. Alito said they would go farther to protect the states from federal interference in elections.

“Given states’ exclusive authority to set voter qualifications and to determine whether those qualifications are met,” Thomas said the Arizona restriction should have been upheld.
“The Constitution reserves for the States the power to decide who is qualified to vote in federal elections,” Alito added.

Last month, Trump’s prosecutors brought fraud charges against 28 lawful immigrants in California who are alleged to have registered or voted in the past even though they are not citizens. They did so under a 1996 immigration law which made it “unlawful for any alien” to vote in a federal election.

The notion of segregating potentially suspect ballots is not a new issue for the Supreme Court.

In November 2020, Alito agreed with Pennsylvania state officials and said they should set aside late-arriving mail ballots to be counted separately.

In response to the COVID-19 pandemic, state election officials and the state Supreme Court agreed to waive part of the state’s law and allow for counting mail ballots that arrived up to three days late.

Republicans strongly objected. That led to Alito’s order. But in the end, the small number of late votes made no difference because the Democratic candidate, former Vice President Joe Biden, decisively won Pennsylvania’s votes and defeated Trump.

The California dispute is different because the state has not changed its voting rules or election procedures. Instead, it is the Trump administration that sought a late change in California’s voting rules and election procedures.

A federal appeals court for the second time Friday denied a Trump administration request to block 20,000 ballots from California voters the administration alleges may be noncitizens — ruling that the administration had failed to show that “such extraordinary relief, during an ongoing election, is clearly required by law.”

The three-judge panel of the U.S. 9th Circuit Court of Appeals — composed of two appointees of President Trump and one of President Biden — ruled 2-1 that the U.S. Constitution gives the state and Congress the power to decide how elections are run, and that allowing the Trump administration to “misuse” federal statutes to “prescribe” how California must process ballots would “override the plain and manifest dictates of the Constitution itself.”

“Because Congress has not exercised the specific power granted to it under the Elections Clause to override California’s established laws for challenging ballots or removing ineligible voters, the State Legislature’s statutory scheme remains the only method to do so,” the judges found.

The panel’s majority — comprised of Trump appointee Mark J. Bennett and Biden appointee Gabriel P. Sanchez — wrote that “if the United States believes different procedures are necessary for vote-by-mail ballots, we believe it should take that suggestion to Congress, not the courts.”

They also wrote that separate federal law prescribes sweeping changes to voter lists 90 days prior to an election, especially given questions about the reliability of the Trump administration’s list of purported noncitizens.

“The suspect reliability of these lists found by the district court reflects the concern Congress sought to mitigate with the 90-day quiet period,” they wrote.

Judge Patrick J. Bumatay, the other Trump appointee on the panel, dissented — arguing that his colleagues erred in denying a basic request by the Trump administration to ensure only citizens are voting.

“The federal government proposes a modest remedy — stopping California from mixing the ballots of citizens and suspected noncitizens,” Bumatay wrote. “This solution would not cancel any vote but would allow time to verify the eligibility of suspected noncitizens. The district court, and now our court, denies this reasonable request.”

This article will be updated.

My fellow Californians, let us begin with an intelligence test.

Our great state has been voting since early October. Folks have been mailing in their ballots, dropping them off at collection sites and even showing up at in-person centers.

So raise your hand if you know — or even just assume — elections officials have been doing something with those ballots as they arrive, other than just throwing them in a pile.

Congratulations, hand-raisers. You are now officially smarter than the entire U.S. Department of Justice. Or at least more honest.

On Sunday, the lawyers for the DOJ managed to get a three-judge panel of the Court of Appeals for the 9th Circuit to convene a rare emergency hearing because, OMG, people are actually voting and California is processing ballots!

Who could have possibly known?

Even though it’s literally law that counties count ballots in a timely manner; even though it’s happened in every other election; even though the daily tallies of how many ballots are received are posted online by the secretary of State; even though there are live camera feeds of ballots being processed in Los Angeles — somehow the U.S. government didn’t know this normal election procedure was happening, it claimed.

It wasn’t until late Friday, when DOJ lawyers read a filing by California DOJ lawyers laying out that L.A. is, like, actually opening mail-in ballots, that the U.S. DOJ realized that ballots are being opened. About 600,000 so far in L.A.

That seemed “absurd on its face,” argued California Deputy Solicitor Gen. Samuel P. Siegel.

Armed with this previously unknowable information, Trump’s lawyers were begging the appeals court to take their flimsy, constitutionally questionable case away from the judge who had already promised to rule on their requests on Tuesday and immediately give them an injunction to further their election conspiracy claims.

Most folks are aware of the background of this drama, but here’s the quick recap.

President Trump for years has falsely but incessantly claimed that Democrats are colluding with undocumented people to help them sneak into the country in exchange for illegally voting in mass numbers for Democrats. This is not happening, but the president is obsessed with this conspiracy, so much so that he is weaponizing the Department of Justice to attack states, California in particular, in a bid to prove his delusions correct, and perhaps as a bonus, undermine democracy.

A few months ago, the DOJ came to the state of California and claimed it had a list of 190,000 people it believed were illegally registered to vote. That list has since dropped to 20,000. But with all the investigative power of the government hard at work on this, only 28 people in California have been indicted by the feds during this no-holds-barred effort, and it looks as though not all of those cases will hold up.

Undeterred, Trump lawyers tried to get a California judge to order the state (and Los Angeles) to set aside ballots that it claims to have doubts about. They asked the judge in that case for a temporary restraining order forcing L.A. County to do that, and the judge agreed to rule on that request early next week, in an already-expedited fashion.

But then the Trump lawyers learned about all that ballot processing and demanded the judge instead rule by Saturday afternoon — though the reasoning here seems iffy. When the federal judge assigned to the case didn’t rule by Saturday, an absurd ask that didn’t even allow enough time for lawyers to file briefs, the feds ran to the 9th Circuit, claiming that failing to rule on Saturday was a de facto denial of their request.

Basically, it seems the Trump lawyers were arguing two things. First, that once ballots are counted, they can’t be uncounted, and if there are illegal ballots, that hurts all voters. Sure, OK.

But again, there is no evidence this is happening in any widespread fashion, and the lists of potential vote scofflaws compiled by the government have been shown to be error-ridden. They may also involve the use of a mysterious non-government “third party” to gather the information that not even the Trump lawyers could identify Sunday.

DOJ lawyers also claimed they had just learned that once a ballot is taken out of the envelope, there was no way to reconnect that ballot to the voter who cast it — because our votes are anonymous. Therefore, the 20,000 ballots had to be grabbed before they were separated from the documents inside.

The lawyers did not explain why they needed to know how a person voted to confirm they illegally voted. The envelopes are retained by county elections officials, but apparently the Trump lawyers feel it’s critical to tie them to particular votes.

But here’s the thing — there are simply not enough illegal voters to sway a Los Angeles election, or a California one for that matter. We have a system to ferrets out problematic ballots right now, and a separate criminal system that can hold illegal voters accountable. Two weeks before an election isn’t a time to demand ballots be withheld — unless you’re trying to undermine trust.

The appellate judges did not seem impressed by the federal laywers’ arguments, questioning more than once if the 9th Circuit even had jurisdiction since states are in charge of elections, not the federal government. There was even some reading of the 10th Amendment. You know, the one the don’t-tread-on-me types love that reads: “The powers not delegated to the United States by the Constitution, nor prohibited by it to the States, are reserved to the States.”

We should expect a ruling sooner rather than later, but the real question remains, why the emergency? The DOJ is involved in another voting lawsuit in Washington, D.C., where the plaintiffs, led by the UCLA Voting Rights Project, have asked for a restraining order of their own stopping the government from creating national lists of who it thinks should vote, and using janky, secretive information gathering to do it.

It’s also true that the original case was reassigned from a Trump-appointed judge to one appointed by Bill Clinton. There has been speculation the switch may have been viewed unfavorably by the feds, though the Clinton-appointed judge, David O. Carter, was given the case because of his experience in the subject matter.

The D.C. restraining order could be decided in the next few days. I’m not saying the cases are related, or that the judge should or does matter, but the Trump DOJ’s argument in California is basically that its list of 20,000 is really solid, reliable information.

If the D.C. federal judge rules first that the government information gathering is potentially both an overreach and sloppy, it makes it that much harder for another judge, or the appellate court for that matter, to rule that the list is so critical that they must step in.

So maybe there is an emergency.

Just not the one the government is claiming.

President Trump illegally usurped Gov. Gavin Newsom’s command of the California National Guard by ordering a surge troops deployed into Los Angeles and across the state amid protests against the White House’s mass deportation program last year, the 9th Circuit Court of Appeals ruled Friday.

The two-one decision split the president’s own appointees to the court, with Judge Eric D. Miller of Seattle siding with Judge Jennifer Sung of Portland, a Biden pick, and Judge Mark J.Bennett of Honolulu dissenting.

“The order exceeded the President’s statutory authority and encroached on Congress’s calling forth power, in violation of the constitutional separation of powers,” Sung wrote for the majority, calling Trump’s order “unconstitutional.”

The decision also appeared to foreclose what California Atty. Gen. Rob Bonta called “the Trump Administration’s transparent attempt” to preserve its right to call up California troops again under the same obscure statute — a novel legal maneuver administration lawyers said let the president seize command without invoking the far stronger Insurrection Act.

The 9th Circuit trio was among the first to weigh the law last June, after Trump federalized 4,000 National Guard soldiers in response to unrest over immigration enforcement in Los Angeles.

California sued. US District Judge Charles R. Breyer quickly ruled to block the deployment. But Sung, Bennett and Miller stayed his order, finding that the California deployment could go forward under an obscure and virtually untested subsection of the law.

That decision set a “great level of deference” as the standard of review for deployments, meaning courts had very little power to test the president’s rationale for sending troops into American streets.

At the time, the decision represented one of the president’s most sweeping second-term victories: a plug-and-play legal mechanism to deploy soldiers against civilians in cities across the country.

In Portland that fall, another 9th Circuit panel stayed U.S. District Judge Karin Immergut’s order to stand down troops, using the first trio’s precedent.

The Portland decision — based in part on data the Department of Justice later admitted was false — prompted an extraordinary filing by Judge Jay Bybee, who all but pleaded with the court to rehear the case and interpret the law differently.

“There is no greater threat to the sovereignty of the states than an assertion of federal control over their domestic affairs,” Bybee wrote.

The issue quickly found its way to the Supreme Court, after a 7th Circuit panel found the president had provided “insufficient evidence” for deployment even under the 9th Circuit’s deference standard.

On Dec. 23, the Justices adopted a celebrated Georgetown scholar’s academic reading of the statute, saying it only allowed the president to commandeer national guard troops if the situation had already outmatched the standing army.

Federalized troops were ordered to leave Los Angeles in December.

On Friday, the 9th Circuit held that Trump’s claim that Los Angeles was in the grips of a rebellion last June “did not reflect a colorable assessment within a range of honest judgment.”

Using “the plain text of the statute,” and “dictionary definitions of the disputed term,” the majority found the president had not furnished evidence of a “a violent, armed, organized, open and avowed uprising against the government as a whole” — nor anything close to it.

Instead, Justice Department lawyers had relied on subsidiary definitions of “rebellion” that the 9th Circuit warned would allow the president to call up troops to quell almost any resistance, including peaceful protests.

“Resistance that is not violent, armed, organized, and against the government as a whole generally does not require a military response,” Sung wrote.

“Because Defendants have failed to identify a source of authority that would allow the military to legally execute the laws in California, they have not carried their burden to show that the President had the authority to federalize California’s National Guard,” Sung wrote.

The 9th Circuit Court of Appeals nixed a trailblazing California law on Wednesday, permanently barring the state’s efforts to force federal immigration agents to display identification while on duty.

“As before, we conclude … the No Vigilantes Act attempts to directly regulate the United States in its performance of governmental functions,” Judge Mark J. Bennett wrote for the panel. “No set of circumstances exist under which the Act would be valid.”

The U.S. Justice Department first sued to block the ID requirement alongside a related law attempting to ban masks for federal agents and local police in the fall of 2025.

The joint case hit Los Angeles federal court at the beginning of this year amid a surge of immigration enforcement in Minneapolis that led to the shootings of civilians Renee Good and Alex Pretti by U.S. Immigration and Customs Enforcement agents.

By then, more than a dozen other states were pursuing similar statutes in an effort to rein in what many saw as lawlessness in President Trump’s sprawling deportation force.

Judge Christina A. Snyder ultimately blocked California’s law prohibiting the use of masks by law enforcement, on the grounds that it unfairly carved out an exception for state peace officers, but allowed the ID requirement for ICE agents and others to go forward, agreeing with the state that it was more akin to a speed limit on the highway than a direct regulation of the federal government.

The 9th Circuit quickly disagreed.

“If a state law directly regulates the governmental conduct of the United States without congressional authorization, it is void irrespective of whether the regulated activities are essential to federal functions or operations, and irrespective of the degree to which the state law interferes with such functions or operations,” Bennett wrote.

The decision comes as ICE is quietly shedding many of the 12,000 new recruits it hired last year. Although public outrage over Trump’s militarized mass deportation efforts has diminished somewhat since the winter, it remains a potent election issue.

A Reuters/Ipsos poll from September showed more than 40% of Americans strongly disapprove of the president’s handling of immigration. Meanwhile, the share who fret over unauthorized immigration is nearly identical to the proportion who worry about the unchecked spread of measles — anxieties that pale in comparison with stress over the cost of living, the proliferation of data centers and the war with Iran, data show.