A federal appeals court on Monday rejected a request from the Trump administration that it intervene in a lawsuit against California and declined to immediately order the state to set aside as many as 20,000 mail-in ballots that the administration claimed had been provided to noncitizens.
By a 2-1 vote, a three-judge panel of the U.S. Court of Appeals for the Ninth Circuit found that it was too early for the appeals court to take up the case because a lower court judge had not yet considered it, refusing the Trump administration’s effort to rush the case by leapfrogging a district court judge.
The ruling came as the federal government waged an increasingly coercive pressure campaign against California, attempting to enlist the state in its hunt for instances of voter fraud and sowing doubt about the security of its voter registration processes.
In the order on Monday, which did not address the underlying merits of the Trump administration’s claims, Judge Mark J. Bennett, who was appointed by President Trump, joined with Judge Gabriel P. Sanchez, who was appointed by Joseph R. Biden Jr. They wrote that the Justice Department “failed to allow” a lower court the “adequate opportunity” to consider the case, rushing an appeal before a district court judge could hold a hearing, which is scheduled for Tuesday.
While the ruling was only an incremental setback for the Trump administration, the appeals court had already flashed skepticism about the lawsuit during an emergency hearing on Sunday — suggesting skepticism about the ultimate success of the administration’s gambit in California. In the opinion, they noted that an eleventh hour ruling would also “undoubtedly” interfere with the state’s ability to administer the midterm election.
Both Judge Bennett and Judge Sanchez lobbed tough questions at a government lawyer about its justifications for asking California to screen ballots and the extreme urgency it had claimed in the lawsuit.
Monday’s order emphasized that the Trump administration had lodged its appeal even though there were still days to spare before the deadline the government had initially set in requesting court action. When it filed the lawsuit against California, the Justice Department asked the lower court to reach a preliminary decision in the case by Election Day, Nov. 3.
In court filings, the Justice Department indicated that it had come up with the list of about 20,000 names by comparing some California voter roll data with a federal immigration database, matching names and checking for overlaps that would indicate that people listed at one point as noncitizens in federal data had also appeared as registered voters.
California officials have complained that the administration has been vague about its exact process for coming up with the names and the list includes errors. It is already illegal under state and federal law for noncitizens to vote in federal elections in California. Voters are required to attest they are citizens when registering.
The administration’s claims have also been a moving target.
In July, officials had claimed to have found as many as 270,000 noncitizens on voter rolls in Nevada, California, New Jersey and Pennsylvania.
In a letter that month, it warned California officials it had found “as many as 190,832 noncitizens registered to vote.” When California officials challenged the finding and asked for more information, the Trump administration did not respond, the state said in a filing.
On Oct. 13, the Justice Department delivered a smaller list containing 20,000 names to officials in Los Angeles County. Officials there noted that the list contained addresses of people throughout the state, and only 7,035 records appeared to be from Los Angeles.
Two days after it sent the voter file to Los Angeles, the Justice Department filed suit to stop the counting of ballots sent to the 20,000 individuals it flagged “until their citizenship status can be determined.”
In a filing to the appeals court, the state said the data it received would need to be manually reviewed to make sure that lawful voters were not disenfranchised. The effort, it wrote, would “redirect key staff from the critical work of administering the Nov. 3 election.”
Election officials said they also launched a hurried effort to review the data within the 48 hours the Justice Department gave officials to act. In court filings, they reported that cursory review of about 3 percent of the records showed the federal data appeared to be riddled with incorrect leads. Fewer than half, they said were active voters. Most had never voted at all. Importantly, more than 25 percent listed a birthplace in the United States, making them definitively citizens.
When officials in Nevada interrogated similar claims from the administration, it similarly found problems with the data. The Trump administration said in July that nearly 16,000 noncitizens were registered to vote in the state, it followed up with a list of 185 voters it said it “confirmed” were illegally registered. The state later determined that all were lawful citizens.
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