Two 9th Circuit judges signaled they would not set ballots aside
The Justice Department has asked the 9th Circuit Court of Appeals to rule quickly on whether it can prevent California from counting ballots cast by up to 20,000 people the department alleges are likely noncitizens. The appeal came hours after U.S. District Judge David O. Carter rejected the department’s emergency request to compel the state to segregate those ballots from its vote count.
In a late Wednesday filing, the department said a ruling was needed as soon as possible because of “irreversible ballot processing occurring on an ongoing basis.” The department says it believes the ballots went to people who are registered to vote despite not being U.S. citizens. Early voting has been underway in California for weeks, and millions of people have already cast ballots.
Carter’s ruling was the latest court decision against the administration in a dispute over state-run election administration, in midterms that will decide control of Congress for the rest of Trump’s term. The Justice Department has made similar demands in other states, including Washington. Noncitizen voting has been a central focus of Trump’s political messaging for years, although available data indicates it is exceedingly rare.
Trump criticized Carter’s decision Thursday morning before heading to a campaign rally in South Carolina. “California is very corrupt. The elections are extremely corrupt. The judge should not have done that but we’ll appeal that, of course,” he told reporters. Trump added without evidence that there are “hundreds of thousands” — amended to “millions, in my opinion” — of “bad ballots” in California.
Carter, an appointee of Democratic President Bill Clinton, argued that the department’s demands were a clear violation of the National Voting Rights Act, which prohibits changes to voter rolls or election procedure within 90 days of an election. He also questioned the reliability of the department’s list of names, since both sides agree that an unspecified number of U.S. citizens were inadvertently included. He argued that separating the ballots at this point would risk disenfranchising citizens and “wreak havoc” on the election certification process.
Over 500,000 votes have already been processed in Los Angeles County alone, according to court filings. The state’s system also protects voter privacy: once a vote is processed, it cannot be traced back to the person who cast it.
Carter still must rule on the federal government’s renewed request for a preliminary injunction barring the state from counting the ballots until the litigation is resolved. He said Wednesday that if the federal government suspected noncitizens were voting, it could continue to prosecute those cases criminally. Federal authorities have charged over two dozen foreign nationals in California as part of a statewide sweep targeting people officials say have illegally registered or voted in U.S. elections.
The Justice Department has argued that it is in the government’s interest to prevent fraudulent voting before it happens. Federal prosecutors also have said voters would not be disenfranchised by delaying the tabulation of their ballots while their citizenship is checked — an assertion disputed by county election officials.
The appeal will be the second time the 9th Circuit considers the case. Last week, the department argued before an appeals panel that a fast ruling on its request was needed to stop any counting of the ballots. The panel ruled it was premature for an appeals court to get involved before a lower-court ruling, but two of the three judges wrote separate concurrences making clear they would not support setting aside ballots at this late date. They questioned the accuracy of the federal government’s list of alleged noncitizen voters and argued that setting aside votes risks disenfranchising citizens.
One judge dissented, arguing that federal law bars noncitizens from voting and compels California to vet the potentially illegal ballots before they are counted. The failure to do so, he wrote, would cause irreparable harm to the election.
It is not clear whether the case will appear before a new panel of judges or the same three who reviewed it last time.