A federal appeals court Monday denied an emergency request from the U.S. Justice Department to step in and block California election officials from counting about 20,000 ballots from voters whose citizenship the Trump administration has questioned.
The three-judge panel of the U.S. 9th Circuit Court of Appeals — composed of two judges appointed by President Trump and one by President Biden — ruled that it did not have jurisdiction over the request, given that a lower district court has not yet made a ruling on it.
But two of the three judges also wrote separately to make clear they would have denied the Trump administration’s request on other grounds too.
In an unsigned order — joined by Judge Mark J. Bennett, one of the Trump appointees, and Judge Gabriel P. Sanchez, the Biden appointee — the court granted a request from Los Angeles County to dismiss the appeal, writing that the Trump administration “failed to allow the district court adequate opportunity to consider” its request for a temporary restraining order barring the ballots from being counted before filing its unusual appeal.
The court found that the “emergency” the Trump administration asserted was in part a “self-constructed one” and that delays in the district court were partly attributable to its “own delay in filing suit, in realizing that existing California state law governs the issuance and processing of ballots, in recognizing that California has millions of registered voters and processes ballots on a schedule aligned with that scale, and in communicating to the court its desired relief.”
Bennett and Sanchez also each wrote a concurring opinion — in which they made clear that they would have denied the Trump administration’s request even if they did have jurisdiction too.
Sanchez wrote that federal law would bar the court from issuing such a demand on state elections officials so close to an election, as doing so “would transform California’s election rules for an election that is already underway and would cause widespread confusion among voters and election officials, divert election administration resources, and ‘usher in electoral chaos.’”
Bennett wrote that the Trump administration’s request was probably unconstitutional, as the Elections Clause gives authority only to Congress and the states to run elections, not the executive branch, and Congress has not acted to say that California’s existing laws to ensure noncitizens don’t vote are inadequate.
Bennett also wrote that the Trump administration “offered no workable plan of any kind as to how the remedy it seeks could be accomplished in practice without potential catastrophic consequences to California’s ongoing election.”
Judge Patrick J. Bumatay, the other Trump appointee, dissented — arguing the Trump administration was well within its legal rights to intervene, and the appellate court did have jurisdiction to grant its request and bar the state “from accepting and processing ballots likely cast by aliens until their citizenship could be verified.”
“The question — does the federal government have the power to stop this potential attack on the integrity of our elections? Under both federal law and the Constitution, the answer must be ‘yes,’” Bumatay wrote. “Simply, the federal government has a sovereign interest in safeguarding federal elections and ensuring that the votes of noncitizens do not undermine our electoral results.”
California officials cheered the ruling, which clears the way for the lower court to proceed with a hearing scheduled Tuesday afternoon before U.S. District Judge David O. Carter in Los Angeles.
The U.S. attorney’s office in Los Angeles, which is helping to lead the case, declined to comment.
California Atty. Gen. Rob Bonta called it “an important step in our efforts to protect Californians’ right to vote and our state’s authority to run fair and secure elections.” Gov. Gavin Newsom called it “a welcome speed bump to Trump’s disgusting attacks on the Constitution and our country’s democracy,” but said such attacks “won’t slow down.”
Carter, an appointee of President Clinton, previously rejected an attempt by the Trump administration to obtain California’s full voter rolls, calling that demand unlawful and a threat to democracy in January. Other federal judges made similar rulings in dozens of states across the country.
The question at issue Tuesday — and hashed over by the appellate court during oral arguments Sunday — is whether the courts should bar the state, Secretary of State Shirley Weber and Los Angeles County Registrar-Recorder/County Clerk Dean Logan from processing and tabulating the flagged ballots until they can provide to the Trump administration proof that those individuals are citizens.
The Trump administration has argued in court filings that the federal government is suffering irreparable harm each day such counting is allowed to continue, as once California ballots are removed from their mail envelopes or cast in person, there is “no way to associate the voter with the ballot” or resegregate those ballots from others.
More than 3 million ballots have already been cast in the upcoming Nov. 3 midterm elections statewide, and more than 500,000 have already been cast in L.A. County.
Attorneys for California, Weber and Logan have argued in court filings that the administration’s demands to segregate 20,000 ballots and vet those voters for citizenship with just days to go before the election are unconstitutional, impossible to comply with, based on flawed data and would cause catastrophic disruptions if elections officials across the state were forced to try.
Although the appellate court’s formal ruling Monday adhered closely to the technical issue of jurisdiction, its conversation Sunday did not — with both Bennett and Sanchez expressing substantial doubts about the lawfulness of the Trump administration’s request, just as they did in their separate concurrences.
Bennett grilled Matthew Donnelly, the attorney for the Justice Department, on how the executive branch’s demands squared with the U.S. Constitution, which explicitly gives states the power to set laws regarding the time, place and manner of elections and Congress — not the executive branch — oversight over those laws.
Times staff writer Brittny Mejia contributed to this report.
