A federal appeals court on Monday rejected an emergency request from the U.S. Justice Department to block California election officials from counting about 20,000 ballots from voters whose citizenship was called into question by the Trump administration.
The three-judge panel of the 9th U.S. Circuit Court of Appeals — consisting of two judges appointed by President Trump and one by President Biden — ruled that it lacked jurisdiction to hear the request, given that a lower district court has yet to rule on it.
But two of the three judges also wrote separately to clarify that they would have rejected the Trump administration’s request on other grounds as well.
In an unsigned order — joined by Judge Mark J. Bennett, one of the Trump-appointed judges, and Judge Gabriel P. Sanchez, a Biden appointee — the court granted a request from Los Angeles County to dismiss the appeal, writing that the Trump administration “failed to provide the district court with an adequate opportunity to consider” its request for a temporary restraining order barring the counting of ballots before filing its unusual appeal.
The court found that the Trump administration’s asserted “emergency” was in part a “self-constructed emergency” and that the district court’s delays were in part attributable to its “own delay in filing a lawsuit, in realizing that current California state law governs the issuance and processing of ballots, in recognizing that California has millions of registered voters and is processing ballots on a schedule aligned with that scale, and in communicate to the court the desired relief.
Bennett and Sanchez also each wrote a concurring opinion – in which they made clear that they would have rejected the Trump administration’s request even if they also had jurisdiction.
Sanchez wrote that federal law would prohibit the court from issuing such a request to state election officials so close to an election because it would “transform California’s election rules for an election already underway and cause widespread confusion among voters and election officials, divert election administration resources, and ‘usher in election chaos.’
Bennett wrote that the Trump administration’s request was likely unconstitutional, as the Elections Clause gives power only to Congress and the states to conduct elections, not the executive branch, and Congress has not taken action to say that California’s existing laws to ensure noncitizens do not vote are inadequate.
Bennett also wrote that the Trump administration “has not offered a workable plan of any kind for how the remedy it seeks could be put into practice without potential catastrophic consequences for the current election in California.”
Judge Patrick J. Bumatay, the other Trump appointee, dissented — arguing that the Trump administration had every right to intervene and that the appeals court had jurisdiction to grant his request and prohibit the state from “accepting and processing ballots likely cast by aliens until their citizenship can be verified.”
“The question: Does the federal government have the authority to stop this potential attack on the integrity of our elections? Under federal law and the Constitution, the answer must be ‘yes,'” Bumatay wrote. “Simply, the federal government has a sovereign interest in protecting federal elections and ensuring that non-citizen votes do not compromise our election results. »
California officials welcomed the ruling, which clears the way for the lower court to proceed with a hearing scheduled for Tuesday afternoon before U.S. District Judge David O. Carter in Los Angeles.
The U.S. attorney’s office in Los Angeles, which is helping lead the case, declined to comment.
California Atty. Gen. Rob Bonta called it “an important step in our efforts to protect Californians’ right to vote and our state’s authority to conduct fair and secure elections.” Gov. Gavin Newsom called it a “welcome speed bump on Trump’s disgusting attacks on our nation’s Constitution and democracy” but said such attacks “will not slow down.”
Carter, appointed by President Clinton, previously rejected an attempt by the Trump administration to obtain California’s complete voter rolls, calling the request illegal and a threat to democracy in January. Other federal judges have issued similar rulings in dozens of states across the country.
At issue Tuesday — and debated by the appeals court during oral arguments Sunday — is whether the courts should enjoin the state, Secretary of State Shirley Weber and Los Angeles County Registrar/Clerk Dean Logan from processing and tabulating the flagged ballots until they can provide the Trump administration with proof that those people are citizens.
The Trump administration has argued in court that the federal government suffers irreparable harm every day such counting is allowed to continue, because once California ballots are removed from their mailing envelopes or cast in person, there is “no way to associate the voter with the ballot” or separate 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 Los Angeles County.
California attorneys Weber and Logan have argued in court that the administration’s demands to separate 20,000 ballots and verify the citizenship of those voters just days before the election are unconstitutional, impossible to comply with, based on faulty data and would cause catastrophic disruption if election officials across the state were forced to try.
Although the appeals court’s formal ruling on Monday adhered closely to the technical question of jurisdiction, its conversation on Sunday did not — with Bennett and Sanchez expressing substantial doubts about the legality of the Trump administration’s request, just as they did in their respective settlements.
Bennett questioned Justice Department attorney Matthew Donnelly about how the executive branch requirements fit with the U.S. Constitution, which explicitly gives states the authority to establish laws regarding the time, place and manner of elections and Congress — not the executive branch — to oversee those laws.
Times staff writer Brittny Mejia contributed to this report.
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