Voter ID is the only way to fix California’s broken election system.
That’s the only reasonable conclusion from Sunday’s extraordinary hearing at the US Court of Appeals for the Ninth Circuit.
A three-judge panel heard the Trump administration’s case against non-citizen voting in California.
Earlier this month, the US Department of Justice (DOJ) gave California a thumb drive with 20,000 names on it, ostensibly containing the names of suspected non-citizens who had registered to vote in the state.
State and county officials, who had already sent ballots out by mail, refused to open it.
So the DOJ sued in district court, hoping to force California to set aside those 20,000 ballots if and when they came in.
Time is of the essence: ballots are already being mailed back, and counted. And once they are in, it’s almost impossible to fish them out again.
The district judge set a hearing date eight days after the case was filed. Normally, that’s quick. But in the middle of a vote-by-mail election, it meant that hundreds of thousands of ballots would be counted in the interim.
So the Trump administration appealed to the Ninth Circuit to intervene.
The judges — two Trump appointees, one Biden appointee — seemed skeptical of the DOJ’s case, at first.
After all, the Constitution’s Elections Clause leaves it to the states to decide how to run their election.
Sure, federal law prohibits non-citizens from voting — as does state law in California — but normally it’s up to California to figure out how to enforce that.
And if California decides not to make voters prove they are citizens — if it just asks them to “attest” that they are — that might be lame, but it might also be within California’s right to do so.
The Tenth Amendment — important to conservatives — also prevents the federal government from forcing the states to enforce federal laws.
That’s called “commandeering” — and Trump can’t force California to enforce federal laws against non-citizens voting. Nor can Trump make the state enforce its own laws, either.
The judges — including the Trump appointees — were also worried about stepping into the lower court case too soon.
Why the rush? And if the federal government was concerned about votes being counted before non-citizen ballots could be separated, why hadn’t it acted sooner?
The DOJ, represented by Matthew Donnelly, said that the administration didn’t have a reliable list of non-citizen voters until recently.
Whether the judges buy that explanation remains to be seen.
But the judges also had one lingering question for the State of California’s lawyers that they could not answer.
If it’s illegal for non-citizens to vote in California, how does the state stop them from voting?
California’s lawyers seemed to have no answer.
“Your Honor, I honestly don’t know the answer to that.”
The state seemed to argue that anyone could challenge a non-citizen’s ballot as it was being cast.
(How are you supposed to do that — hide in a mailbox?)
Suppose someone does challenge a ballot. The judges asked how the state would verify the accusation.
“There could very well be a verification process,” a lawyer for the state replied.
Could be? You mean, they don’t know?
Well, he said, he was sure that a losing candidate could bring some kind of challenge. But he’d have to have overwhelming evidence, and there would have to be enough non-citizen votes to make the difference in the election.
Good luck finding that evidence after an election. Especially when California takes several weeks to count the votes.
Here’s where things stand.
California bars non-citizens from voting. But it doesn’t require anyone to prove citizenship when they register.
If a non-citizen casts a ballot, there’s almost no practical way to challenge it.
The State of California set the system up this way — on purpose.
They say that very few non-citizens vote — but they make it impossible to know.
And they’re proud of it. Smug, even. What are you going to do about it?
Well, there is one thing to do about it.
There’s Proposition 39, which would require voters to have valid ID to vote.
It’s the only way to make sure that only citizens vote in California’s elections.
It’s curious that Democrats are so determined to stop it.
Joel Pollak is Opinion editor of The California Post.
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