In a rare hearing Sunday, a federal appeals court judge appointed by President Trump questioned how the Trump administration’s request to intervene in California’s ongoing midterm elections to force state officials to void 20,000 ballots from voters whose citizenship it questions was consistent with the U.S. Constitution.
Judge Mark J. Bennett said that even if the executive branch is “dissatisfied” with what California law requires to ensure that 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, although it has the ability to do so.
“It appears to me that you want us to issue an injunction that is completely inconsistent with the law that the California legislature passed pursuant to the Elections Clause,” Bennett said. “How can we do this?”
Matthew Donnelly, a Justice Department lawyer, said the Trump administration has good reason to believe those ballots came from ineligible non-citizen voters and has the right under a separate federal criminal law to challenge their tabulation until state officials can prove otherwise.
Donnelly said federal criminal law and state election law prohibit non-citizen voters from voting, but “the problem is California is not interested in enforcing that provision.”
The exchange took place during an hour-long hearing before a three-judge panel of the 9th U.S. Circuit Court of Appeals, following the Justice Department’s unprecedented emergency request that the court order California Secretary of State Shirley Weber and Los Angeles County Clerk Dean Logan to immediately stop counting the ballots of 20,000 flagged voters until they can definitively prove that these voters are American citizens.
The appeals panel — on which Bennett was joined by Circuit Judges Patrick J. Bumatay, another Trump appointee, and Gabriel P. Sanchez, appointed by President Biden — has not issued a decision, although a ruling is expected soon given the emergency nature of the appeal.
How he will rule is unclear, although Bennett and Sanchez both peppered Donnelly with questions about how the Trump administration’s position complied with the law.
Rick Hasen, director of the Saving Democracy Project at UCLA Law School, wrote online Sunday that the court appeared “very likely to reject” the Trump administration’s appeal, with Bennett and Sanchez having “expressed great skepticism about jurisdiction and merits.”
In addition to questioning its constitutionality, Bennett also questioned how the appeals court even had jurisdiction over the case, given that the Trump administration appealed the case to the appeals court before the lower district court had a chance to evaluate the facts of the case or issue an order.
“How can we have jurisdiction when the district court said it was going to rule quickly? » Bennett said. “I don’t see what we have jurisdiction over.”
Bennett also questioned why the appeals court should ignore claims by state election officials that having to comply with the Trump administration’s demands in the few days remaining before the Nov. 3 election would catastrophically disrupt the election, given that the lower court had no chance to evaluate those claims.
“Isn’t that enough to make us think about whether we should do exactly what (a state expert) believes is going to cause a catastrophe?” » Bennett asked.
Bennett’s questions evoked many of the arguments the state made in its own case filings, which were repeated by California Assistant Attorney General Samuel P. Siegel during the hearing.
Siegel said there was “nothing” for the appeals court to consider, given that there was no investigation or order from the lower court, and that the administration’s requests were unconstitutional and illegal. He said the court does not have to grapple with many of the arguments made by the Trump administration because it should simply dismiss the appeal for lack of jurisdiction and send the case back to the lower court.
Bumatay appears to be the most interested of the three justices in the harm caused when noncitizens vote, and in the underlying question of how the state should handle objections from alleged noncitizen voters when they arise.
Siegel and Seth Waxman, Logan’s lawyer, said there are processes for that — which require the challenger to present extraordinary evidence — which they say the Trump administration has failed to do for the 20,000 voters it has flagged.
Sánchez repeatedly questioned the provenance of the administration’s list, asking which third parties were involved in providing the data. Donnelly was unable to respond, which Sanchez said raises 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 has argued that once mail-in 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 separate it from other ballots.
California attorneys Weber and Logan argued the requests were illegal, impossible to meet before the Nov. 3 election, and based on deeply flawed federal immigration and third-party data sets that were found to be inaccurate and inclusive of legitimate voters.
In their court filings, they argued that the Trump administration’s argument “rests on mere suspicion, sparked by suspect data,” and that its lawsuit is at best “a reckless political stunt” and at worst “threatens to disenfranchise thousands of Californians in this election.”
Independent election experts said the Justice Department’s efforts break with the department’s longstanding policy of not addressing election-related issues within 90 days of an election, to avoid disenfranchising legitimate voters.
They also said the Trump administration’s lists of presumed non-citizen voters and its power to intervene are both questionable, particularly because the U.S. Constitution allows states to conduct elections under the oversight of Congress, not the executive branch.
The Justice Department prosecuted California, Weber and Logan on October 15, two days after Acting Assistant Atty. Gen. Trent McCotter wrote to Weber and Logan giving them 48 hours to reserve the ballots of the 20,000 flagged voters — who McCotter said were “probably non-citizens.”
First Assistant U.S. Attorney. Bill Essayli, Los Angeles’ top federal prosecutor, said federal authorities have “overwhelming evidence” that tens of thousands of noncitizens are registered voters in California, and 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 illegal voter registration.
The Justice Department sent letters to county election offices across the state on Friday asking them to separate ballots from voters the Trump administration considers non-citizens, drawn from the same list of 20,000 people at issue in the case against Weber and Logan. In those letters, the Justice Department gave county officials 48 hours to comply and threatened them with criminal penalties if they refused.
State officials said neither Essayli nor other Trump administration officials provided evidence to support their claims and that their list of 20,000 voters was clearly inaccurate. Logan said a preliminary review of a subset of those voters found that many of them were born in the United States, were not registered and had never voted.
More than 3 million people have already voted in California – and more than 500,000 have already done so in Los Angeles County.
The challenge to California’s 20,000 ballots is just the latest attempt by the Trump administration to interfere in the state’s elections ahead of the midterms.
Federal judges in dozens of states have rejected Justice Department lawsuits demanding that states turn over their voter rolls to the Trump administration. Federal judges also rejected several Trump executive orders attempting to institute nationwide checks on voter identity and citizenship, as well as his administration’s attempt to allow the U.S. Postal Service to monitor mail-in ballots.
Other cases — including those involving the Trump administration’s use of unproven and inaccurate federal data sets to question the citizenship of state voters — are pending.
Democrats and voting rights groups are also bracing for further litigation from the Trump administration to challenge a crucial election outcome that the president doesn’t like — and are already defending themselves against a lawsuit filed by the Justice Department at Trump’s behest in Alaska, preemptively challenging a Democratic Senate victory there based on a third candidate sharing a similar name to the Republican incumbent.
Times staff writer Brittny Mejia contributed to this report.
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