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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.

For the past eight years, a small group of influential Ventura County Republicans has played a pivotal role in the selection of every new judge in the Superior and Municipal courts.

Working out of the public eye, this little-known group of judicial advisers has helped pick almost half the judges now serving in the Ventura County courts–its recommendations almost always accepted by Gov. George Deukmejian.

The most influential of the advisers–according to several sources–is Dist. Atty. Michael D. Bradbury, who has helped secure judicial appointments for nine assistant prosecutors out of the 11 judgeships that have opened up since Deukmejian’s election in 1982.

In addition to Bradbury’s input, three of the county’s top Republican Party stalwarts serve as an informal judicial screening panel for Deukmejian.

They are Paul Leavens of Ventura, former county campaign chairman for Deukmejian; Gwen Tillemans of Oxnard, county Republican chairwoman; and Katherine H. Haley of Ojai, a major Republican fund-raiser.

The four have helped give a conservative and prosecution-oriented shape to the county’s bench for years to come, but whether they will enjoy a similar advisory role in the administration of Republican Gov.-elect Pete Wilson remains to be seen.

Leavens, Tillemans and Haley say that, in the informal structure of the county panel’s makeup, they see themselves as a separate panel of political advisers to the governor that usually checks with Bradbury before making judicial recommendations to Deukmejian.

Leavens is among those who candidly admit that Bradbury is probably the most influential of Deukmejian’s local advisers, an opinion shared by many in the legal community.

“The district attorney in Ventura County, as I recall, is a very influential person,” said Charles Vogel, president of the California Bar Assn. “I think that he’s not shy about expressing his views and I think that he will endeavor to influence the composition of the court, since it’s important to him.”

“It is not sufficient for Kay Haley to say, ‘Gee, I’d like you to make Chuck Campbell a judge now,’ ” said Wendy Lascher, president of the Ventura County Bar Assn., referring to Municipal Judge Charles W. Campbell Jr.

“That’s how the governor gets the ideas for choosing who to nominate, and if it comes down to one or the other it makes a difference,” Lascher added. “I suspect Mike Bradbury has had more influence than the rest of those people put together.”

And Leavens conceded:

“I would never send a recommendation to the governor without checking with Mike. He’s probably the most influential one of all. He’s in and out of the courts. He knows who they are.”

Bradbury downplays his role in picking the county’s judges, insisting that the governor’s office consults the local district attorney on judicial openings in every county in California.

That statement is supported by Terry Flanigan, the governor’s appointment secretary, but disputed by a spokeswoman for Dist. Atty. Ira Reiner in Los Angeles, a Democrat, who said Deukmejian never consults Reiner or any other Democratic head prosecutors around the state.

“I’m treated no differently than any other district attorney in the state . . . the governor’s office seeks our input and we provide it if we have the pertinent information,” Bradbury said. “The governor is clearly his own person when it comes to judge appointments and he does not simply rubber-stamp the recommendations of others.”

Nonetheless, Bradbury said that all 11 judges appointed by Deukmejian in the last eight years were recommended by him during the initial review process, including the nine former prosecutors from Bradbury’s office.

All the judges are white, nine of the 11 are Republicans and all but one are men.

Deukmejian appointed five out of the 15 sitting Superior Court judges, including Robert C. Bradley in 1984 and Barbara A. Lane, Kenneth R. Yegan, Frederick A. Jones and Edwin M. Osborne in 1986. All were elevated from Municipal Court positions. Osborne, a Democrat, is now presiding Superior Court judge.

Deukmejian also installed half of the 12 Ventura County Municipal Court judges, including Democrat Herbert Curtis III in 1984, John R. Smiley in 1986, Barry B. Klopfer in 1987, Charles W. Campbell Jr. and Ken W. Riley in 1988 and Thomas J. Hutchins in 1989.

Lane and Smiley, the only non-prosecutors, were appointed from private practice.

Bradbury’s influence in the judicial selection process, especially the elevation of Municipal Court judges to the Superior Court, brought an expression of concern from one expert on legal ethics, Dean Gerald F. Uelmen of the Santa Clara University School of Law.

“I wouldn’t go so far as to say it’s a conflict that should preclude him from serving on the committee, but I think it’s a legitimate concern,” Uelmen said. “The danger would be that a judge would be more reluctant to rule against the D.A. on an issue that comes before him, for fear that it would jeopardize his prospects for advancement.”

Bradbury retorted:

“Gerry’s comment is the typical BS that he throws out on this and every other issue where he takes a very pro-defense point of view. I’ve never had any judge try and curry favor with me for any reason.”

Bradbury said he has “a fairly combative relationship” with Ventura County’s judges who dislike the fact that his policy against plea bargaining forces 12% to 15% of cases to trial, compared with 5% to 7% in most other counties.

Bradbury vehemently insisted he is “not on any committee” and added that “my views do not carry the kind of weight people attribute to me.” He said that Deukmejian’s office also consults with Sheriff John V. Gillespie on some appointments. Gillespie was out of town and unavailable for comment.

Each of Deukmejian’s judicial appointees in Ventura County began the selection process by calling or being recommended by someone on the informal three-member review panel, Leavens said.

Panel members never meet to discuss their work, but they often call each other and Bradbury to confer on nominees, said Leavens, whose Ventura-based Leavens Ranches company owns more than 1,000 acres of citrus and avocado orchards in Ventura and Monterey counties.

Each sends a letter of recommendation to Deukmejian’s office only “after conversing with people that know these people and learning who is well-respected, who has a good reputation and who would not embarrass the governor,” Leavens said.

Haley, a third-generation Ventura County resident described by some as “Mrs. Republican” in Ventura County, said she agrees with Leavens’ description of their work.

“The gist of it is that when there were people who had contacted us that were interested in serving as a judge . . . we investigated whether they were qualified people who could do the job. We’d write a letter and send it to the governor,” Haley said. “He wouldn’t always take our suggestion.”

Bradbury said that party loyalties play no role in his recommendations to Deukmejian. As for the fact that nearly all of Ventura County’s judges are Republican, he said:

“I have a hunch it’s because people that go into law enforcement organizations, for example, prosecutors, tend to be Republican. But we’ve got our share of Democrats in the office.”

Although the three review panel members do not automatically reject Democrats, Leavens and Tillemans said they screen the legal records, family background and political views of potential nominees to make sure that they will hew to Republican philosophies.

“Through the years, we’ve had so many judges that were very lenient in so many ways . . . so we look for the good Republican principles,” Tillemans said. Asked to outline the principles that are reflected in nominees’ legal briefs and judicial rulings, she said, “It’s more government by the people than government for the people.”

However, the three said that they do not delve into nominees’ personal lives.

“The kind of people we were talking to were all law-abiding citizens that were well-known in the legal community. Besides, isn’t that against the law anyway?” Haley said. “I never had anybody talk to us that had murdered anybody or threw his wife downstairs.”

And Leavens said they do not concern themselves with the nominees’ drinking habits or marital fidelity. “I think those things you wouldn’t have to ask about. You’d hear about them from other sources. Anybody that wants to go up is essentially pretty clean.”

The process of settling on a recommendation can take four to six months, said Tillemans, who when not working for her party promotes housing developments for the Dolphin Group, a Los Angeles-based lobbying and public relations firm with strong Republican political connections.

“We go over their resumes and we recommend the ones who we think are suitable and then the governor’s appointment secretary looks over them and it goes to Deukmejian,” she said.

But before Deukmejian makes any appointment, each nominee is reviewed by the state Judicial Nominees Evaluation Commission, a panel of 20 lawyers and six lay people, which does extensive background checks.

The so-called Jenny Commission also reviews a seven-page questionnaire in which each nominee lists experience on the bench and at the bar, outlines political affiliations and personal history, and answers the question, “Why do you want to be a judge?”

Once that process ends, the commission rates each nominee as extremely well qualified, well qualified, qualified or “not ready for appointment at this time,” Flanigan said.

After reviewing the commission’s recommendations and letters on the nominees from local bar associations, the governor picks the nominee he feels is best suited for the slot, Flanigan said.

But this process could change in January–after what is sure to be a flurry of appointments by the outgoing Deukmejian–when Sen. Pete Wilson becomes governor, legal experts and Wilson associates agree.

Wilson has relied on an eight-member merit selection committee to make initial recommendations for federal judge appointments in the Central District of California. The panel included U.S. 9th Circuit Court of Appeals Judge Cynthia Holcomb Hall, U.S. District Judge William D. Keller and California Supreme Court Justice Malcolm M. Lucas, who also served while a federal district judge.

Although critics on the federal bench challenged the propriety of letting federal judges help name their colleagues when the Wilson committee’s makeup was first revealed in 1986, the panel has continued to advise Wilson on federal judicial nominees. Federal judges are appointed by the President upon the recommendation of legislators.

And if Wilson’s taste in federal judges is any guide, his appointments to the state bench will differ to some degree from Deukmejian’s, said Vogel, the state bar association chief.

“It appears he is impressed with people who have good academic records,” Vogel said of Wilson. “If you look at his federal appointments, many of them were high achievers in college or law school.”

Vogel continued, “Deukmejian was the attorney general, he did work with prosecutors, he did work with government lawyers. He was pretty proud of them and felt somewhat in line with them and felt their expertise in government would fit them well in the bench.”

However, Wilson’s method of weeding out unwanted nominees probably will change for state appointees because state law requires nominees to be reviewed by the Jenny Commission, said John G. Davies, a San Diego lawyer who served as Wilson’s judicial selection adviser.

“Deukmejian and all the other governors in my lifetime have had local screening committees. I have no idea what Pete’s intentions are on that,” Davies said.

“We have over 4,000 judicial applications on file for Deukmejian,” Flanigan said. He predicted the lame-duck governor will fill many of the judicial vacancies before leaving office. “I think he’ll look at it as his greatest legacy.”

The retirement last week of Presiding Municipal Judge Lee E. Cooper Jr. virtually guarantees that Deukmejian’s local advisers will have further impact on the bench before Wilson takes office.

The Jenny Commission already has pumped nominees through the pipeline and readied them for the governor’s final approval, and the local advisers have made their recommendations for new openings, Bradbury said.

“It’s my sense that Deukmejian will fill every opening that he has available before he leaves office because the judiciary was a very important issue for him,” Bradbury said.

Once Wilson takes office, he will find the California justice system far larger and more of a challenge–with 1,500 judgeships–than the federal system he is accustomed to, said Flanigan, the governor’s appointment secretary.

Flanigan, who has been asked to keep his job through the first year of Wilson’s term, said that relying on a fixed group of people for input “would not be reasonable,” even though “there are lawyers and non-lawyers who we may talk to in the Deukmejian or future Wilson administration.” The ideal situation, he said, “is to talk to as broad a group as possible.”

Flanigan said the work of local advisers such as Bradbury, Leavens, Tillemans and Haley is vital to selecting the nominees that his office sends to the Jenny Commission–that is, the nominees who have a shot at being appointed by the governor.

“Wilson will follow the same road as Deukmejian in appointing conservative judges,” Tillemans predicted, “and we’re on that governor’s council now.”

Leavens’ wife, Carolyn Leavens, who was chairwoman of Wilson’s campaign in Ventura County, said she made a recommendation on one of Deukmejian’s judicial appointees–a duty she would gladly repeat for Wilson.

Bradbury, who actively campaigned for Wilson this year, said he is uncertain what his role will be in helping the new governor select future Ventura County judges.

But he added, “I would hope that Sen. Wilson would continue to seek the input of local public officials.”

Israel’s top court has overturned an election panel’s ban on Arab parties contesting parliamentary elections this month, saying the decision had not met the legal requirements for excluding them, according to Israeli media.

The Supreme Court justices ruled unanimously on Friday to undo the Central Elections Committee’s disqualification of the country’s two main Arab-majority political lists – Ra’am, also called the United Arab List, and the Joint List, which is an alliance of Hadash, Ta’al and Balad.

The decision keeps Palestinian citizens of Israel, who make up about 20 percent of the population, in the race after critics accused the committee of double standards ahead of the October 27 Knesset vote.

The court also voted 7-2 to reinstate Ofer Cassif, a sitting Jewish member of the Knesset from the Arab-Jewish Hadash party and an outspoken critic of Israel’s treatment of Palestinians, media reports said.

The two dissenting justices said Cassif backs “armed struggle against the state of Israel”, which is grounds for his disqualification.

In September, the elections committee voted to disqualify the Joint List and Ra’am as parties, as well as Cassif and Sami Abu Shehadeh, head of the Balad party, as individuals.

Balad leader withdraws

The Supreme Court has nearly always overruled the committee when it votes to ban candidates.

However, at a hearing on Thursday, Supreme Court President Yitzhak Amit told Abu Shehadeh that a majority of the nine justices favoured disqualifying him from the election.

They gave him until Friday to withdraw, saying that if he did not, he would be disqualified, according to the Israeli Public Broadcasting Corporation.

Abu Shehadeh withdrew from the election after that.

National Security Minister Itamar Ben-Gvir, a far-right ally of Prime Minister Benjamin Netanyahu, led the push to bar him over an article written after the Hamas attacks on October 7, 2023. Abu Shehadeh described the attack as “an important historical event” in the piece, but denies supporting it.

Balad said in a statement that a court-ordered removal, rather than a voluntary one, would have had “grave consequences for the country’s political and parliamentary life” as it would set a precedent around the removal of Arab candidates.

Double standards

The Ra’am party made history after the 2021 election, becoming the first Arab party to join an Israeli government when it took part in a disparate coalition that briefly removed Prime Minister Benjamin Netanyahu from power. Most Palestinian citizens of Israel had stayed out of coalition politics until then.

In this election, Ra’am is also fielding a Jewish Zionist candidate for the first time, Yoav Segalovitz, who won popularity in Arab communities for his work to curb crime as deputy minister for internal security.

The election committee’s September vote drew accusations of a double standard, as Palestinian-led parties faced exclusion while parties led by far-right ministers, some of whom have been sanctioned internationally, stayed on the ballot.

Speaking to Al Jazeera on Friday, Abu Shehadeh said he withdrew because he “didn’t have any other choices”.

Although the Supreme Court has restored the Arab parties to the ballot, Abu Shehadeh said the reversal did not make the original disqualifications acceptable.

“In the end, what happened yesterday was a historical catastrophe for democracy, or the very narrow margins of democracy in the State of Israel,” he said. “I was disqualified because I think differently, because I have a different narrative on how to read history, the present, and the future in the place that we live today.”