Trump-appointed judges question DOJ bid to block 20,000 California ballots

Two of the three federal appeals judges weighing the Justice Department's demand to set aside about 20,000 California mail ballots are Trump appointees, and both spent Sunday's hearing questioning whether the court should be involved at all.

In a rare Sunday argument on Oct. 25, a Ninth Circuit panel of Judges Mark J. Bennett and Patrick J. Bumatay, both Trump appointees, and Gabriel P. Sanchez, a Biden appointee, heard the department's emergency request for an injunction pending appeal in United States v. California. The order DOJ wants would bar California and Los Angeles County from counting ballots cast by people on a federal list of suspected noncitizens until each voter's citizenship is confirmed, the Los Angeles Times reported. The panel did not rule and said it would decide quickly. As of Monday morning, we found no ruling.

The case matters to every working Californian with a ballot in hand. More than 3 million people in the state had already voted before Sunday, with Election Day on Nov. 3.

Jurisdiction Before Merits

DOJ went to the appeals court before the trial judge ruled. It sued on Oct. 15 in the Central District of California (No. 2:26-cv-12025), arguing that counting these ballots is preempted by the federal ban on noncitizen voting, 18 U.S.C. § 611. U.S. District Judge David O. Carter declined to meet the deadline DOJ had set for him, and the department appealed, JURIST reported.

That move drew Bennett's sharpest questions. "How do we have jurisdiction when the district court has said it's going to rule expeditiously?" he asked, according to the Times and Democracy Docket. "I don't see how we have jurisdiction." In plain terms, an appeals court normally reviews a decision a lower court has made, and Carter had not made one yet.

Sam Siegel, California's deputy solicitor general, told the panel there was "nothing" for it to review and asked it to dismiss the appeal, the Times reported.

On the merits, Bennett said the Constitution's Elections Clause gives states authority over how their elections run, and suggested DOJ wanted an order that conflicts with the law California's Legislature passed. He cited Smiley v. Holm, the 1932 Supreme Court case holding that a state's power over congressional elections covers matters including the "counting of votes." UCLA law professor Rick Hasen wrote that DOJ attorney Matthew Donnelly said he was not familiar with the case.

Where Did the List Come From?

Sanchez pressed DOJ on how it built the list. Donnelly could not say which third parties supplied the data, the Times and Hasen reported.

DOJ calls the people on the list "likely noncitizens." The county's own review cuts against that. Los Angeles County checked 200 names and found that nearly 4 in 10 indicated they were born in the United States, more than 70% had no voting history and more than 40% had canceled registrations, according to a court filing reported by the AP and ABC News. California has argued the list sweeps in U.S.-born citizens. The administration has a record here: President Trump claimed in July that Nevada had 1,500 noncitizens on its rolls, and the real number turned out to be zero.

Donnelly argued that "the problem is that California isn't interested in enforcing" the federal ban, per the Times. He offered no example of a noncitizen ballot California had refused to act on. Siegel and Seth Waxman, the former U.S. solicitor general representing Los Angeles County, said state law already lets anyone challenge a ballot with proof, and that DOJ had not offered any.

Bumatay raised the Supreme Court's Purcell principle, which warns federal courts against changing election rules close to an election. But Hasen wrote that Bumatay seemed the most receptive to DOJ's argument that counting a noncitizen's vote causes harm that can't be undone.

Who Wins, Who Loses

Hasen called a 2-1 ruling against DOJ "easy at this point to see," and said a unanimous ruling on jurisdiction or timing grounds was possible, with Bumatay writing separately. A loss could send DOJ to the Supreme Court.

A DOJ win would hold up thousands of ballots from voters the county's own data suggests are largely citizens. A loss leaves California's count on schedule, though DOJ is pressing on other fronts: 48-hour letters to county registrars and charges against 28 green card holders from the same list.

Next up: Carter holds a hearing Tuesday, Oct. 27, on DOJ's request for a temporary restraining order, a short-term emergency order. We condemn an effort to hold up citizens' ballots on a list the government can't explain. Watch for the Ninth Circuit's order, which could come any day, and for whether the loser goes to the Supreme Court before Nov. 3.

Sources

• 9th Circuit panel questions basis for feds' request to block 20,000 California ballots (Los Angeles Times, via The Spokesman-Review)
• Ninth Circuit Panel Seems Skeptical of DOJ's Attempt to Force California to Segregate Ballots from Purported Noncitizens (Election Law Blog)
• Appeals court appears skeptical of DOJ's emergency bid to block 20,000 ballots in California (Democracy Docket)
• California election officials frustrated, rattled by DOJ demand to sequester noncitizen ballots (AP, via PBS NewsHour)
• Federal appeals court to hear arguments in Trump administration's voting lawsuit against California (ABC News)
• DOJ appeals to Ninth Circuit as California says judge has not ruled on request to segregate 20,000 mail ballots (JURIST)
• Complaint, United States v. California, No. 2:26-cv-12025 (C.D. Cal.) (U.S. District Court, via Democracy Docket)
• Smiley v. Holm, 285 U.S. 355 (1932) (Justia)