A federal appeals court for the second time Friday denied a Trump administration request to block 20,000 ballots from California voters the administration alleges may be noncitizens — ruling that the administration had failed to show that “such extraordinary relief, during an ongoing election, is clearly required by law.”
Trump administration officials did not immediately respond to a request for comment, including on whether it will appeal to the U.S. Supreme Court.
The three-judge panel of the U.S. 9th Circuit Court of Appeals — composed of two appointees of President Trump and one of President Biden — ruled 2-1 that the U.S. Constitution gives the state and Congress the power to decide how elections are run, and that allowing the Trump administration to “misuse” federal statutes to “prescribe” how California must process ballots would “override the plain and manifest dictates of the Constitution itself.”
“Because Congress has not exercised the specific power granted to it under the Elections Clause to override California’s established laws for challenging ballots or removing ineligible voters, the State Legislature’s statutory scheme remains the only method to do so,” the judges found.
The panel’s majority — composed of Trump appointee Mark J. Bennett and Biden appointee Gabriel P. Sanchez — wrote that “if the United States believes different procedures are necessary for vote-by-mail ballots, we believe it should take that suggestion to Congress, not the courts.”
They also wrote that a separate federal law bars sweeping changes to voter lists 90 days prior to an election, especially given questions about the reliability of the Trump administration’s list of purported noncitizens.
“The suspect reliability of these lists found by the district court reflects the concern Congress sought to mitigate with the 90-day quiet period,” they wrote.
Judge Patrick J. Bumatay, the other Trump appointee on the panel, dissented — arguing that his colleagues erred in denying a basic request by the Trump administration to ensure only citizens are voting.
“The federal government proposes a modest remedy — stopping California from mixing the ballots of citizens and suspected noncitizens,” Bumatay wrote. “This solution would not cancel any vote but would allow time to verify the eligibility of suspected noncitizens. The district court, and now our court, denies this reasonable request.”
Ballots are scanned in to be counted at the Orange County Registrar of Voters facility on Oct. 28 in Santa Ana.
(Apu Gomes / Getty Images)
Previous rejections
The same three-judge panel had already rejected the same demands on Monday, citing some of the same concerns, while a lower district judge in Los Angeles had rejected them on Wednesday.
Justice Department attorneys appealed the lower court’s ruling back to the appellate court Thursday, arguing that irrevocable harm is being inflicted on the federal government each day that passes without a court order blocking the counting of ballots from potential noncitizens, in part because those votes — once cast and processed — cannot be removed from state and local vote tallies.
Attorneys for California and Los Angeles County, in filings before the appellate court Friday morning, argued that the Trump administration’s demands were unconstitutional, impossible to comply with, reliant on error-ridden data and deeply threatening to eligible California voters.
California officials and independent voting rights groups welcomed the appellate court’s latest ruling as a major win for the state. California Atty. Gen. Rob Bonta said it and the state’s other wins in court “make clear that the Trump administration has zero authority to interfere in California’s elections,” which already make “exceptionally rare” incidents of voter fraud illegal.
“The administration’s baseless claims of widespread fraud are an attempt to sow doubt in our democratic process and risk disenfranchising eligible voters,” Bonta said.
Gov. Gavin Newsom called the Trump administration’s efforts “attacks on our democracy,” and said state officials “will continue to fight them on their illegal power grabs every step of the way, and deliver a free and fair election just as we’ve always done.”
The ruling came as county election officials across California were confronting a new threat: criminal grand jury subpoenas demanding that they provide Homeland Security investigators and federal prosecutors with emails, texts and other internal records related to their handling of the administration’s demands, and appear in federal court soon to testify to that process.
Mariachi Lindas Mexicanas play as people march to drop off their ballots at the Coalition for Humane Immigrant Rights Flex Voting Center in Los Angeles on Oct. 30.
(Genaro Molina / Los Angeles Times)
How many subpoenas have gone out is unclear, though The Times has reviewed at least three received by officials in the office of Los Angeles County Registrar-Recorder/County Clerk Dean Logan, who is a defendant in the case before the appellate court — along with the state and Secretary of State Shirley Weber. The Associated Press has reported that subpoenas are going out in all four federal court districts in California.
The ruling also came amid separate challenges to the Trump administration’s reliance on such lists in California and other states in federal court in Washington, D.C.
In one of those cases, Senate Minority Leader Chuck Schumer (D-N.Y.), House Minority Leader Hakeem Jeffries (D-N.Y.) and several national Democratic groups have asserted that the administration’s efforts to block ballots and threaten elections officials are a “pretext to seize control over elections” in which the Republican Party appears poised to lose power.
Taken together, the proceedings represent an unprecedented battle among federal, state and local authorities over voting procedures in the midst of an election. They highlight the stunning degree to which the Justice Department has disregarded long-standing rules barring such probes in the midst of voting in order to pursue proof of Trump’s long-held claims that U.S. elections are fraught with widespread fraud.
Election experts say such fraud is exceedingly rare. California has more than 23 million registered voters, meaning the full list of 20,000 flagged voters represents about 0.087% of them — or less than one-tenth of 1%.
The broader battle
The administration’s list of 20,000 voters — which it has said it developed using a mix of public records, immigration files and commercial databases — has been defended by administration officials as reliable and including only individuals the administration has “high confidence” are noncitizens.
But state and county officials and various voting rights organizations have described it as unreliable and inaccurate. Some county officials have said their own cursory reviews of a subset of the voters found people who appear to be born in the U.S., who aren’t registered and who have never voted.
State officials have said those inconsistencies, and the fact that the same federal prosecutors claiming widespread fraud in court have brought criminal charges against only 28 people in the state, show that the true scale of the issue is much smaller than they and Trump have made it out to be.
Trump said with no evidence this week that “there are hundreds of thousands of bad ballots, bad votes, in California. Millions, in my opinion.”
In a recent social media post, Trump wrote that California election officials who don’t comply with federal demands to set aside the flagged ballots “will all go to jail for a long period of time!!!”
That threat from the hyperbolic president, denounced by legal scholars, has nonetheless gained credence in recent days, as federal prosecutors have issued their grand jury subpoenas to election officials.
At the very least, such subpoenas mean that federal prosecutors believe that the internal discussions local election officials have had on how best to respond to the Trump administration’s alleged noncitizen lists are relevant in one or more ongoing criminal investigations.
On Thursday, unions representing California election workers sued the Justice Department, accusing federal government officials of engaging “in a coordinated campaign to intimidate, threaten, and coerce state and local officials and employees.”
The unions, including the Service Employees International Union, the AFL-CIO and the American Federation of State, County and Municipal Employees, are asking a federal judge to bar the Trump administration from threatening to prosecute election workers who count ballots cast by voters the administration has flagged.
The Trump administration’s list has not been made public, though the administration sent the list to state officials and has subsequently sent subsets of voters from that list to individual counties where the administration believes they are registered. Some county officials have flagged errors with those lists, including that individuals on them appeared to live in different parts of the state.
On Friday, U.S. District Judge James E. Boasberg, sitting in Washington, D.C., held a hearing in a separate case challenging the administration’s use of such lists in California from the UCLA Voting Rights Project on behalf of the Coalition for Humane Immigrant Rights, or CHIRLA, and a California voter named Pedro Trujillo.
Boasberg ordered the Trump administration to provide CHIRLA with its lists, so that the group can check to see if any of its members are on them.
