Panel weighs state authority and reliability of federal voter list
A three-judge panel of the 9th U.S. Circuit Court of Appeals heard rare weekend arguments Sunday on the Trump administration’s request that California set aside thousands of mail ballots from people the federal government suspects may not be citizens. Two of the judges appeared skeptical as the panel examined the request’s timing, constitutionality and authority. The lawsuit concerns 20,000 names the administration flagged as likely noncitizens on California’s voter rolls.
The administration asked a federal district judge to require California to withhold the ballots from counting until the voters’ immigration status could be verified. Its mid-October lawsuit accused state election officials of failing to meet a 48-hour deadline to review the 20,000 names. A district judge scheduled a hearing for Oct. 27, days after the case was assigned, and the government appealed to the 9th Circuit for an expedited decision as state officials processed thousands of mail ballots each day. Circuit Judge Mark Bennett, a Trump appointee, questioned whether the appellate court had jurisdiction to hear the case before the lower court ruled. Justice Department attorney Matthew Donnelly argued that the district judge’s schedule was too slow and effectively denied the government’s request.
Judge Gabriel Sanchez, appointed by former President Joe Biden, asked whether the federal government was violating the Tenth Amendment by commandeering the state to enforce a federal law that makes noncitizen voting a misdemeanor. Donnelly responded that the government was asking California to enforce its own law, which also bans noncitizens from voting, and said the state’s refusal to set aside the ballots was “frustrating the purpose” of the federal law.
Bennett said the Elections Clause gives state legislatures the power to set 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,” Bennett said, but the state has the right to determine those issues, including how it sorts out noncitizen voters.
Donnelly told the panel that California was causing 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 identifying noncitizen voters a priority this year, even though noncitizen voting is exceptionally rare.
Attorney Seth Waxman, representing Los Angeles County Clerk Dean Logan, said the federal government’s list was unreliable and that segregating the ballots for a review process would effectively disenfranchise thousands of eligible voters. Even if election staffers spent just three minutes checking each of the expected 2.75 million mail ballots against the government’s list, the process would take 140,000 man-hours, Waxman said — or about 16 years of working time.
Waxman cited a review of 200 records from the administration’s list conducted by Los Angeles County staffers. Assistant Registrar-Recorder Monica Flores said in a court filing that the sample included canceled or inactive registrations, individuals with no voting history and voters who appeared to have been born in the United States, which the filing noted “is strong evidence of citizenship.”
Attorney Sam Siegel, representing California Secretary of State Shirley Weber, said the administration could ask Congress to change how California runs its elections if it disagreed. He said the federal government had provided no credible evidence to support its suspicions and told the panel, “It has no basis in law or in fact,” adding, “We just dispute the premise that noncitizens are voting.”
Judge Patrick Bumatay, another Trump appointee, said everyone has an interest in ensuring that only eligible citizens vote. He suggested that granting the administration’s request for an emergency order could provide clarity. “Without an injunction, you will never know” if that is happening, Bumatay told Siegel. Bennett said the panel would try to issue a ruling as quickly as possible.
Rebecca Boone reported from Boise, Idaho.