Appeals panel questions DOJ bid to set aside California ballots

Panel questions voter proof and emergency remedies

During the Oct. 25 hearing, the 9th Circuit panel appeared skeptical of the Trump administration’s arguments and peppered DOJ lawyers with pointed questions. Judge Mark Bennett asked whether California election workers could legally disqualify voters without “extraordinary proof” by the federal government.

Bennett said, “Congress and the California Legislature have said non-citizens can’t vote. This lawsuit is about, ‘We don’t like the way you’re sorting citizens from non-citizens,’” and added, “I just don’t see [federal law] telling California how to do the sorting.”

Judge Gabriel Sanchez, an appointee of President Joe Biden, also expressed significant skepticism about the legality of the remedies the Trump administration was seeking so close to election day and whether appellate court intervention was appropriate at that point.

California’s attorney Samuel Siegel said the White House lacked the constitutional authority to tell California how to sort its ballots. “If the federal government, if the Executive Branch wants that authority in the first instance, they need to go ask Congress for it, they haven’t done that,” Siegel said. He added, “They ask this court to short circuit the democratic process and issue an order, not just on the eve of an election, but as an election is underway.”

Government attorney Matthew Donnelly said the Trump administration came up with the names after carrying out a “rigorous process” using its own citizenship data.

Rare Sunday session precedes Tuesday district hearing

The 9th Circuit Court of Appeals, based in San Francisco, convened by videoconference for a rare Sunday session, two days after the Trump administration urged it to intervene in the lawsuit against California election officials.

The lawsuit demanded that California election officials access a password-protected flash drive. The government says the drive contains the names of thousands of possible non-citizens believed to be on California’s voter-registration list.

The legal request concerned 20,000 ballots the administration says could be cast by non-citizens. State workers were asked to segregate possible ballots tied to people on the list.

Last week, U.S. Deputy Attorney General Trent McCotter gave the Los Angeles County Clerk and California Secretary of State two days to confirm they were reviewing thousands of submitted names and were segregating possible ballots that might have been cast by individuals listed on the drive.

U.S. District Judge David Carter had already scheduled an emergency hearing for Tuesday. The Department of Justice sought and received appellate intervention on Sunday, bringing the government’s request for emergency action before the appeals panel two days ahead of the scheduled district-court session.

California officials called the request legally baseless and a last-ditch effort by the White House to intervene in next week’s midterm elections. They also said the administration had lost more than two dozen court challenges over the past year seeking to force states to release their voter rolls.