A federal appeals court panel on Friday denied the Trump administration’s request that it order California officials to set aside about 20,000 mail-in ballots that the administration claimed had been sent to possible noncitizens.
In a sharp rebuke, the panel wrote that entertaining the government’s requests would trample California’s authority over its election procedures, and that to rule otherwise would amount to “undermining the Constitution’s plain text.”
“If the United States believes different procedures are necessary for vote-by-mail ballots, we believe it should take that suggestion to Congress, not the courts,” the order said.
The ruling just days before the midterm elections means that the window is rapidly closing for the Justice Department to win a court order that could force state officials to change how process mail-in ballots. The administration could now ask the Supreme Court to intervene, though the justices have long held that federal courts should not change balloting rules on the eve of an election.
The lawsuit has become part of an escalating, multipronged effort by the Trump administration in recent weeks to argue that elections are marred by votes from noncitizens, who cannot legally participate in federal elections. There are in fact vanishingly few documented instances of noncitizen voting, and California officials have argued that the list of names the Justice Department provided is riddled with errors.
Aside from demanding that specific mail-in ballots be segregated and scrutinized before they are counted, the administration has also issued subpoenas to county election workers in California and charged 28 people with violating federal election laws. The efforts in California mirror others around the country and appear intended to cast doubt on the validity of the vote, as polls show Republicans may lose control of one or both chambers of Congress.
By a 2-to-1 vote, a majority of the panel wrote that stepping in to order that thousands of ballots be taken out of the usual tabulation channel would be an extraordinary disruption to the state’s electoral system so close to Election Day.
Judge Mark J. Bennett, who was appointed by President Trump, joined with Judge Gabriel P. Sanchez, who was appointed by President Joseph R. Biden Jr.
Judge Patrick J. Bumatay, also a Trump appointee, dissented, writing that the Trump administration’s claims should be taken at face value.
“Both state and federal law prohibit aliens from voting in our elections,” he wrote. “Yet according to the federal government, those aliens received mail-in ballots for the upcoming election.”
The same group of appeals judges already declined on Monday to jump ahead of a lower-court judge and immediately rule for the administration.
Instead, they sent the case back to Judge David O. Carter, a district court judge who was initially assigned the case, and who sided with California on Wednesday. In grave terms, he wrote that the federal government’s demands threatened to “wreak havoc” on state election administration and “create a chilling effect on election workers and voters alike.”
Judges Bennett and Sanchez raised similar questions when they originally heard the case on Sunday, asking whether the government’s data, which appeared to contain no definitive evidence of noncitizens voting, could produce false matches and disenfranchise lawfully registered voters.
Those concerns were reiterated in the order on Friday, which noted the “suspect reliability” of the lists of ostensibly noncitizens registered to vote in California that the Trump administration had distributed. It added that, in the majority’s view, “the United States effectively seeks to cancel (or potentially cancel)” batches of ballots based on flimsy evidence.
“This adds to our reasons for finding that overall, the district court did not abuse its discretion,” the order said.
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