A panel of federal appeals judges on Sunday challenged the timing, constitutional basis and legal authority behind the Justice Department’s effort to force California election officials to set aside thousands of mail-in ballots cast by voters the federal government suspects may not be U.S. citizens.
During unusual weekend arguments, two of the three judges on the 9th U.S. Circuit Court of Appeals appeared doubtful about a lawsuit filed by President Donald Trump’s administration in mid-October. The case alleges that California officials violated a 48-hour deadline to examine roughly 20,000 names the administration identified as possible noncitizens on the state’s voter rolls.
The Justice Department asked a federal judge to prevent the state from counting the ballots until the voters’ immigration status could be confirmed. Although the district judge set a hearing for Oct. 27, just days after receiving the case, the federal government appealed to the 9th Circuit and requested an expedited ruling.
Justice Department attorney Matthew Donnelly told the judges that California was inflicting irreparable harm “by allowing noncitizens to vote in violation of their own state laws. The damage is irreversible and irrevocable.”
The Trump administration has made detecting noncitizen voters a central priority this year, despite the fact that voting by noncitizens is extremely uncommon.
Circuit Judge Mark Bennett, a Trump appointee, first questioned whether the appeals court had authority to consider the dispute before the lower court had issued a ruling.
Donnelly maintained that the district judge’s timetable was unacceptably slow and amounted to rejecting the government’s request, particularly as California election workers process thousands of mail ballots each day.
Judge Gabriel Sanchez, appointed by former President Joe Biden, asked whether the federal government was violating the Tenth Amendment by effectively directing California to enforce a federal law that makes voting by noncitizens a misdemeanor.
Donnelly argued that Washington was merely asking California to enforce its own prohibition on noncitizen voting. He said the state’s refusal to separate the ballots for additional review was “frustrating the purpose” of the federal law.
Bennett pointed to the Constitution’s Elections Clause, which gives state legislatures authority over the time, place and manner of congressional elections. The executive branch may be “unhappy with what they’re doing, and doesn’t like the manner,” he said, but California retains the power to decide those procedures, including how suspected noncitizen voters are handled.
Seth Waxman, representing Los Angeles County Clerk Dean Logan, said the federal list was fundamentally unreliable. Separating the ballots for investigation, he argued, could effectively disenfranchise thousands of eligible voters.
Waxman estimated that checking each of the projected 2.75 million mail ballots against the government’s list would require about 140,000 staff hours, even if every review took only three minutes. That would equal roughly 16 years of working time.
Waxman pointed to a Los Angeles County review of 200 records included on the administration’s list. Assistant Registrar-Recorder Monica Flores said in a court filing that the sample contained canceled or inactive registrations, people with no voting history and voters who appeared to have been born in the United States—something the filing described as “strong evidence of citizenship.”
Sam Siegel, representing California Secretary of State Shirley Weber, said that if the administration objected to the state’s election procedures, it should ask Congress to change the law.
Siegel also argued that the federal government had offered no credible evidence to substantiate its suspicions.
“It has no basis in law or in fact,” he told the judges. “We just dispute the premise that noncitizens are voting.”
Judge Patrick Bumatay, another Trump appointee, countered that all parties have an interest in ensuring that only eligible citizens cast ballots. He suggested that an emergency order could bring greater clarity to the dispute.
“Without an injunction, you will never know” whether that is occurring, Bumatay told Siegel.
Bennett said the panel would work to issue its decision as soon as possible.
___ Boone reported from Boise, Idaho.
