Soon after a federal judge in Los Angeles sharply rejected a Trump administration effort to block 20,000 California ballots from voters it alleged may be noncitizens, the U.S. Justice Department announced it will appeal — leaving attorneys on both sides preparing Thursday for yet another court battle.
That was despite the lower court judge calling the request an unlawful threat to eligible voters in Tuesday’s midterm election and to free and fair American elections moving forward, and the same appellate court having already rejected the same plan days prior.
“Every day, more ballots are processed by election officials. This ongoing emergency disenfranchises American citizens through dilution,” wrote First Assistant U.S. Atty. Bill Essayli, the lead prosecutor in L.A.
Early Thursday, Gov. Gavin Newsom swiped back at the Trump administration, writing, “A warning to Donald Trump: I’m deploying election lawyers to key battleground districts in California to protect every vote. And I just made it a FELONY to illegally seize ballots.”
With just days to go until polls close, the heated election war between California and the Trump administration is showing no signs of slowing down, despite multiple court orders rejecting the administration’s central effort to interfere in the midterms by accusing state and county officials of willfully turning a blind eye to voter fraud.
That’s in part because lawyers within the U.S. Justice Department have been unrelenting in their pursuit of such control, both through court orders and threats to state and county officials. It’s also because those same officials have refused to yield, denouncing the threats in recent letters back to the Justice Department as unconvincing and illegal.
“Be aware that we consider DOJ’s efforts to threaten California election officials with criminal sanctions for following federal and state law to be an effort to unlawfully intimidate both election officials and California voters, which can undermine voters’ faith in the election process,” Susan K. Blitch, counsel for Monterey County, wrote in one.
Several elections experts warned the administration is trying to sow confusion and suspicion around an election in which the Republican Party is poised to lose ground, in part so they can reject the outcome. But they also said the courts have consistently rebuffed the Trump administration, and will continue to do so through Nov. 3 and after — with the recent rulings in the case over the 20,000 flagged ballots a perfect example.
“The federal government lost in every way it could possibly lose. It lost on the law, and it lost on the facts, and it lost on the equities — [or] weighing the harms to the various parties,” said Rick Hasen, director of the Safeguarding Democracy Project at UCLA School of Law.
Appeal, rebuke, appeal
Last week, Trump administration attorneys decided that U.S. District Judge David O. Carter was not ruling quickly enough on their emergency request for a temporary restraining order to block California, Secretary of State Shirley Weber and Los Angeles County Registrar-Recorder/County Clerk Dean Logan from counting the 20,000 ballots it asserted were from “likely noncitizens” — so they appealed straight to the U.S. 9th Circuit Court of Appeals.
On Monday, a three-judge panel there — including two appointees of President Trump and one of President Biden — denied the appeal for a lack of jurisdiction, because Carter hadn’t been given a chance to weigh in. However, two of the judges — Mark J. Bennett, one of the Trump appointees, and Gabriel P. Sanchez, the Biden appointee — also wrote separately to make clear that they would have denied the administration’s request on the merits, too, for being likely unconstitutional and in violation of federal law.
On Wednesday, Carter, an appointee of President Clinton, issued his own ruling, in which he wrote that the administration’s allegations about noncitizen voters were “not credible” and that the intervention it sought would violate a host of federal laws, sow chaos in the ongoing midterm election, likely lead to the disenfranchisement of legitimate voters and foster future political meddling in elections.
“This request violates longstanding constitutional principles mandating that states have control over their elections,” Carter wrote. “If [the Trump administration’s] last-minute request for relief were granted, either party could create chaos for their own political purposes to disrupt the election process.”
Carter wrote that never in American history “has the federal government, on the eve of an election, sought to coerce a state and local government to abandon their own Constitutional elections procedures and bend to the will of the Executive Branch,” and that, in bringing its suit, the Trump administration was asking the court to “believe that it reigns as a sole sovereign.”
“But California and its people are sovereign, too,” Carter wrote.
The ruling — forceful, unequivocal and based on several of the same arguments made by Bennett and Sanchez — was cheered by state officials and voting rights groups. Elections experts said it squared directly with their understanding of the law, and was appropriate in the face of the Trump administration’s unprecedented, legally baseless effort to intervene in an ongoing state-run election.
Trump administration officials did not see it that way, and weren’t taking no for an answer. Justice Department lawyers promptly filed notice of appeal back to the 9th Circuit — where the case is likely, though not guaranteed, to land before the same three-judge panel that previously rejected the administration’s demands.
War of words
On Wednesday night, Newsom appeared on “Jimmy Kimmel Live!” and predicted Trump will take sweeping steps to “literally suppress the vote, to set the conditions where he will then express doubt in the electoral outcome, and suggest that it was rigged.” But he also said California is fighting back and prepared.
“Right now, I am focused on getting over 1,000 poll workers, folks out there to monitor the DOJ monitors that Trump’s gonna send to try to steal this election,” Newsom said. “We have been running tabletop exercises. We have 1,000 volunteers. We have 134 election law attorneys that we’re sending out.”
On Thursday, Essayli replied to the latter deployment, writing, “You’re going to protect every legal or illegal vote? What about California citizens whose votes are being diluted by ineligible voters. Do their constitutional rights matter.”
Trump, meanwhile, asserted with no evidence that “there are hundreds of thousands of bad ballots, bad votes, in California. Millions, in my opinion.” He said California has “very corrupt elections,” and that if it had honest ones, he “would have won it by a lot.”
The remarks were just the latest in a swirling and highly public war of words between state and federal officials.
In Carter’s courtroom Tuesday, Essayli claimed the federal government has maintained a collaborative “tone” since it first demanded the state set aside ballots, and said he was surprised at how “adversarial” state elections officials had been. But Essayli and other Justice Department officials have been engaged for weeks in an aggressive back and forth with California officials online — which is highly unusual for prosecutors actively litigating related cases.
When Newsom’s office recently wrote that “Trump’s DOJ is so desperate to invent ‘widespread voter fraud,’ it sent California counties lists of people who NEVER voted — and voters from the WRONG COUNTY. Absolute clown show!,” Essayli shot back, “Hey Fraud King,” with a crown emoji. “We’re not waiting for them to vote.”
Also unusual have been the threats Justice Department attorneys have been sending to county elections officials in California, including in a series of Oct. 23 letters in which they asserted varying numbers of “likely aliens” per county, set a 48-hour deadline for the counties to cooperate with federal authorities to prove those voters are citizens.
In one letter to Kristin Connelly, head of the Contra Costa County registrar’s office, U.S. Atty. Craig Missakian flagged 407 potential noncitizens in the county, and said he was writing “to make unmistakably clear the legal implications” of processing any ballots from those voters.
On Wednesday, Thomas L. Geiger, Contra Costa County counsel, responded with his own letter, questioning the accuracy of the noncitizen claims and saying it would be “legally unsound” for Connelly to “disregard both California and federal law” in order to comply with Missakian’s demands.
Other county attorneys hit a sharper tone in their own responses. Tony Lopresti, an attorney for Santa Clara County, wrote that his county “reserves its rights to pursue all legal remedies against DOJ for its unlawful intimidation of election officials and California voters.”
