Appeals Court Judges Voice Deep Skepticism of Trump Bid to Set Aside 20,000 California Ballots

SAN FRANCISCO, Oct. 25 (TodayViralUSA) — A federal appeals panel on Sunday sharply questioned the Trump administration’s emergency request to force California to set aside roughly 20,000 mail ballots from voters the Justice Department suspects are not U.S. citizens, with two of the three judges signaling doubts about both the law and their own authority to step in.

The three-judge panel of the 9th U.S. Circuit Court of Appeals heard arguments in a rare weekend session but did not rule. A decision is expected quickly given the emergency nature of the appeal and the Nov. 3 midterm election, now nine days away.

A Trump appointee leads the questioning

Judge Mark J. Bennett, appointed by President Trump, pressed Justice Department attorney Matthew Donnelly on how the requested order could be squared with the Constitution’s Elections Clause, which gives state legislatures control over the manner of congressional elections, subject to Congress.

“It seems to me that you want us to issue an injunction that is entirely inconsistent with the law the California Legislature has adopted pursuant to the Elections Clause,” Bennett said. “How can we do that?”

Bennett also questioned whether the appeals court could act at all, since U.S. District Judge David Carter has not yet ruled on the government’s request for a temporary restraining order. Carter has a hearing scheduled for Tuesday. “How do we have jurisdiction when the district court has said it’s going to rule expeditiously?” Bennett asked.

Judge Gabriel P. Sanchez, a Biden appointee, raised similar jurisdictional concerns and repeatedly asked where the administration’s list of flagged voters came from and which third parties supplied the data. Donnelly could not say, which Sanchez suggested cast doubt on the list’s reliability.

Judge Patrick J. Bumatay, also a Trump appointee, appeared more receptive to the government, focusing on the harm caused when noncitizens vote and on how California handles challenges to suspected ineligible voters.

What the administration wants

The Justice Department is asking the court to order California Secretary of State Shirley Weber and Los Angeles County Registrar-Recorder Dean Logan to stop processing ballots from the 20,000 flagged voters until their citizenship can be confirmed. Donnelly argued that federal law bars noncitizens from voting and that “California isn’t interested in enforcing that provision.”

The government says the matter is urgent because once a mail ballot is removed from its envelope, it can no longer be traced back to the voter. It sued Oct. 15, two days after a senior Justice Department official gave state and county officials 48 hours to segregate the ballots. On Friday, the department sent similar demands to county election offices across the state, again with a 48-hour deadline.

California’s response

State lawyers told the panel there was “nothing” for the appeals court to review, since no lower court has made findings or issued an order. California Deputy Solicitor General Samuel P. Siegel urged the judges to dismiss the appeal for lack of jurisdiction.

In court filings, the state has called the list deeply flawed and said complying in the final days before the election would be severely disruptive. Logan has said a preliminary review of a sample of the flagged names found many people who were born in the United States, were not registered or had never voted. More than 3 million Californians have already cast ballots, including more than 500,000 in Los Angeles County, according to the Los Angeles Times.

UCLA election law scholar Rick Hasen wrote Sunday that the panel appeared “very likely to reject” the appeal.

Part of a wider push

The California case is one of several moves by the administration in the run-up to the midterms. Federal judges in numerous states have rejected Justice Department suits seeking state voter rolls, and the department separately filed suit last week seeking to block certification of Alaska’s Senate race if Republican Sen. Dan Sullivan loses.