9th Circuit declines expedited ruling in DOJ California ballot case

District court set to hear ballot-counting dispute before Nov. 3 elections

The 9th Circuit Court declined Monday to rule on whether California election officials can count roughly 20,000 ballots that the Justice Department alleges belong to noncitizen voters. The decision leaves the federal government and state officials before a federal district judge Tuesday, Oct. 27, as the Republican administration seeks to sequester the votes before the Nov. 3 elections.

The appellate action focused on timing. A federal district judge had scheduled an Oct. 27 hearing after the Republican administration sued California election officials in mid-October. The federal government then appealed to the 9th Circuit, arguing that a faster decision was needed to prevent further counting of votes. The panel declined Monday to rule, leaving the dispute for Tuesday’s district-court hearing.

Two of the three judges on the panel rejected the administration’s argument. They wrote that the federal government “failed to allow the district court adequate opportunity to consider” its initial request to sequester the ballots in question. The panel’s explanation addressed the sequence of proceedings; it did not rule on the Justice Department’s allegations.

The Republican administration’s mid-October suit in the heavily Democratic state accused California election officials of failing to meet a 48-hour deadline to review a list of 20,000 people the Justice Department said were likely noncitizens on the state’s voter rolls.

The administration asked the judge to stop California from counting the corresponding roughly 20,000 ballots until immigration-status checks could be completed. The appeals court did not grant the request for an immediate ruling.

Monday’s decision therefore did not determine whether the ballots may be counted. It also did not grant the federal government’s request for an expedited ruling. Instead, the panel rejected that request because the government had not allowed the district court an adequate opportunity to consider its initial request.

The ruling leaves the administration with a very short window to try to compel California to sequester the votes before the Nov. 3 elections. Both sides are scheduled to return before the federal district judge Tuesday. The administration is asking the court to withhold the ballots from counting while immigration-status checks are completed.

The Justice Department did not immediately respond to an emailed inquiry. The underlying dispute remains before the district judge, with no appellate ruling on whether California may count the ballots or on the Justice Department’s allegations that they belong to noncitizen voters.