An appeals court declined Monday to order California election officials to set aside thousands of ballots from voters whom the Justice Department claims could be noncitizens, dealing a setback to the Trump administration’s efforts to dictate how midterm results are tabulated.
In a highly unusual move, the Justice Department this month asked a federal judge to prevent the counting of ballots from more than 20,000 voters unless it can be determined they are citizens. The judge set a hearing for Tuesday, but the Justice Department took the matter to the 9th Circuit Court of Appeals last week because it wanted a ruling before then.
A panel of the court dismissed the appeal in a 2-1 ruling that noted the Justice Department had asked a judge to rule on it within 15 hours even though it had waited at least three months to file its lawsuit.
The Trump administration’s “claimed emergency, at least in part, is a self-constructed one,” the appeals panel wrote.
The ruling is not final. It sends the case back to District Judge David O. Carter in Los Angeles.
Appeals Judges Mark J. Bennett, who was appointed by President Donald Trump, and Gabriel P. Sanchez, who was appointed by President Joe Biden, wrote concurring opinions that sided with California election officials. Appeals Judge Patrick J. Bumatay, a Trump appointee, wrote in dissent.
The Justice Department did not immediately comment on the decision.
California Gov. Gavin Newsom (D) called the ruling “a welcome speed bump to Trump’s disgusting attacks on the Constitution and our country’s democracy” in a statement. He urged people to go vote and said that “California is fighting back.”
In its lawsuit, the Justice Department said it was highly confident that the voters it identified were noncitizens. Election officials have said the administration’s information is faulty and includes many people who do not have active voter registrations or appear to be U.S. citizens.
Election officials reviewed a sample of 200 of the voters and found 112 had not been sent ballots because they had already had their voter registrations canceled or been marked as inactive voters, according to court records. Nearly 40 percent of those who listed birthplaces said they were born in the United States, signaling they were likely U.S. citizens. And more than 70 percent of the sample have never voted in California, according to the filings.
“At best, this litigation is a reckless political stunt,” said a court filing from the office of California Attorney General Rob Bonta (D). “At worst, it threatens to disenfranchise thousands of Californians this election.”
California mails ballots to every registered voter, but it’s unclear how many people on the Justice Department’s list were sent ballots — as well as how many have returned them so far.
Noncitizens are not allowed to vote in federal elections, and they rarely attempt to do so, according to past court cases and independent reviews.
In addition to the California case, the Justice Department has asked a federal judge in Alaska to forestall the certification of the results in that state if Republican Sen. Dan S. Sullivan loses. The Justice Department argues voters could be confused because another candidate with a similar name, Daniel J. Sullivan Jr., also appears on the ballot.
Hannah Knowles contributed to this report.
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