A Ninth Circuit panel ruled 2-1 that the government moved before the district court could act, and Judge David O. Carter is scheduled to hear the Justice Department’s request on Tuesday.
The Justice Department’s position is straightforward. Federal law bars noncitizens from voting in federal elections, and the department says it has identified more than 20,000 people on California’s voter rolls who are likely not citizens. It wants the ballots those registrants mail in to be held back from the count until their citizenship can be verified, arguing that once a ballot is separated from its envelope there is “no way to associate the voter with the ballot,” as its lawyers put it in court filings described by the Los Angeles Times.
On Monday, the United States Court of Appeals for the Ninth Circuit declined to order that relief, for now. In a short per curiam order, a three-judge panel granted Los Angeles County’s motion to dismiss the government’s emergency appeal for lack of jurisdiction, holding that the United States “failed to allow the district court adequate opportunity to consider its application for a Temporary Restraining Order.”
The decision does not resolve the dispute. It sends the case back to U.S. District Judge David O. Carter, who had set a hearing on the government’s request for Tuesday, Oct. 27, and has said he will “rule promptly” afterward.
The government’s case
The suit, United States v. California, was filed Oct. 15 against the state, Secretary of State Shirley Weber and Dean C. Logan, the Los Angeles County registrar-recorder. The department argues that California’s counting of the flagged ballots conflicts with federal law under the Supremacy Clause and is preempted by 18 U.S.C. § 611, which makes it a crime for noncitizens to vote in federal elections.
The list grew out of a review by U.S. Citizenship and Immigration Services and Homeland Security Investigations. California mailed ballots to every active registered voter beginning Oct. 1, as state law requires. On Oct. 13, the department sent California the names with a 48-hour deadline. On Oct. 19, it announced charges against 28 lawful permanent residents in what it called Operation Protect the Vote, a case The Inquirer covered at the time.
“Every illegal vote cancels out the vote of a lawful American citizen,” Trent McCotter, the acting deputy attorney general, said in a department statement that day. “Each of the 28 defendants charged today appears on the list of more than 20,000 likely noncitizen registrants we provided to California election officials last week.”
In a statement to The Inquirer on Monday, Kiersten Pels, a Justice Department spokesperson, described the department’s request to county officials. “We are asking each county election official to commit to working with us by providing the necessary information for DHS to quickly verify citizenship status,” she said. “With their help, we can ensure the most secure election in California history.”
“Federal law prohibits noncitizens from voting in federal elections,” Ms. Pels added. “It is also unlawful to deprive the residents of California of a fair and impartially conducted federal election process by casting or tabulating ballots that are known by the person to be materially false, fictitious, or fraudulent under the laws of California.” She cited the noncitizen-voting statute and a provision of the National Voter Registration Act, 52 U.S.C. § 20511.
The department sent similar lists to at least 18 other California county registrars on Friday, CBS News reported. The Inquirer reported on those letters on Sunday.
What the panel said
The government had told Judge Carter on Oct. 21 that it needed a ruling by noon the next day. When none came, it treated his silence as a “constructive denial” and appealed on Oct. 22.
The panel majority, Judges Daniel Bennett and Gabriel Sanchez, rejected that approach. “The United States’s claimed emergency, at least in part, is a self-constructed one,” the order said, attributing part of the delay to the government’s own timing in filing suit and in “communicating to the court its desired relief.”
Each judge in the majority also wrote separately. Judge Bennett, an appointee of President Trump, wrote that the request was likely unconstitutional under the Elections Clause, which assigns election rules to states and Congress, and that the government offered “no workable plan” for setting aside the ballots. Judge Sanchez, an appointee of President Biden, wrote that the Supreme Court’s Purcell principle, which counsels against late changes to election rules, barred relief, quoting a September Supreme Court order that warned against relief that would “usher in electoral chaos.”
Judge Patrick Bumatay, also a Trump appointee, dissented. Asked whether the federal government can act, “under both federal law and the Constitution, the answer must be ‘yes,’” he 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.” He noted that Los Angeles County had processed more than 331,000 mail ballots by the time of the government’s request.
The other side
California officials welcomed the ruling. Attorney General 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,” the Times reported. Governor Gavin Newsom called it “a welcome speed bump” and criticized the administration.
Los Angeles County’s lawyers told the court the federal list contained 7,035 records with county addresses, CBS reported. In a sample of 200, 112 matched registrations that were canceled or inactive, meaning no ballot was mailed; most people in the sample had never voted, and more than a quarter listed a U.S. birthplace.
The U.S. attorney’s office in Los Angeles declined to comment to the Times.
What comes next
More than 3 million ballots have been cast statewide ahead of the Nov. 3 midterm election, and Los Angeles County alone has processed an estimated 550,000, according to CBS. The panel gave the government until 7 p.m. Monday to ask the full Ninth Circuit to reconsider; as of early Tuesday, The Inquirer had found no public report of such a filing. The department could also turn to the Supreme Court, where Justice Elena Kagan handles emergency matters from the Ninth Circuit.
Adaeze Monroe covers Congress, the White House and federal agencies, with a focus on what Washington’s decisions mean for California, for the Washington Bureau. More from Adaeze Monroe
