Politics

Appeals court throws out Trump DOJ's bid to block 20,000 California ballots

In a 2-1 order, the Ninth Circuit said DOJ skipped the trial judge. The ballots keep getting counted.

Stock photo. Photo by Tiffany Tertipes on Unsplash

A federal appeals court on Monday threw out the Justice Department's emergency bid to stop California from counting about 20,000 mail ballots, eight days before the Nov. 3 election.

In a 2-1 order in United States v. State of California (No. 26-7070), a Ninth Circuit panel granted Los Angeles County's motion to dismiss the appeal for lack of jurisdiction and denied DOJ's emergency motion as moot, the order shows. The court held that DOJ "failed to allow the district court adequate opportunity to consider" its request before running to the appeals court. "At least part of the delay here is attributable to the United States's own delay in filing suit," the order says.

Judge Mark J. Bennett, a Trump appointee, and Judge Gabriel P. Sanchez, a Biden appointee, formed the majority. Bennett wrote separately that he would also have denied DOJ's request on the merits. Sanchez wrote that the injunction DOJ wanted "would transform California's election rules for an election that is already underway." Judge Patrick J. Bumatay, a Trump appointee, dissented and said the court should have blocked the state from processing the ballots.

DOJ sued California and Los Angeles County on Oct. 15, claiming the ballots belong to people on a federal list of "likely" noncitizens. Santa Clara County Counsel Tony LoPresti said DOJ's lawyer could not say where the list came from, only that it was bought from a third party, KTVU reported. We covered Sunday's argument here.

Gov. Gavin Newsom welcomed the ruling and urged Californians to vote early. Attorney General Rob Bonta said the Constitution gives states and Congress, not the president, power over how elections run, NBC Los Angeles reported.

The fight now returns to U.S. District Judge David O. Carter, who is set to hear DOJ's motion on Tuesday, Oct. 27, in Los Angeles, according to the order. DOJ could also go to the Supreme Court, where Justice Elena Kagan handles emergency appeals from the Ninth Circuit. DOJ did not immediately respond to a request for comment, KTVU reported.

We applaud the panel for refusing to let DOJ skip the trial court and rewrite the rules mid-election. For California voters, nothing changes: mail ballots are still being counted. If you haven't voted, you can still drop off your ballot or vote in person through Nov. 3.