Trump DOJ Appeals Again After Judge Refuses to Block 20,000 California Ballots Days Before the Midterms

The Justice Department filed a notice of appeal in the California ballot case Wednesday night, just hours after a federal judge refused its emergency request to stop the state from processing ballots tied to more than 20,000 voters the Trump administration claims are likely noncitizens.

U.S. District Judge David Carter denied the request in a 26 page ruling, and the department quickly told the court it would take the fight to the Ninth Circuit Court of Appeals. With the midterms set for Tuesday, Nov. 3, the clock is running out for the DOJ to get a different answer.

This is the department’s second trip to the appeals court in a week. The DOJ sued California, Secretary of State Shirley Weber and Los Angeles County Registrar Dean Logan on Oct. 15, after voting was already underway, asking the court to force election officials to set aside ballots from the flagged voters until their citizenship could be confirmed. The department argued it could not wait, because once a ballot is separated from its envelope, it can no longer be traced back to the voter who cast it.

When Carter scheduled a hearing instead of ruling by the DOJ’s own deadline, the department filed an appeal on Oct. 22 anyway, treating the judge’s silence as a denial. On Monday, a three judge Ninth Circuit panel threw that appeal out because there was no ruling to appeal. Judge Mark Bennett, a Trump appointee on the panel, wrote that he would have rejected the request on the merits too, and pointed out that part of the rush was caused by the DOJ’s own delay in filing the case. Judge Patrick Bumatay disagreed, arguing California’s actions should be overridden by federal law.

Now that Carter has issued an actual ruling, the DOJ has something to appeal. If the Ninth Circuit turns it down again, the department could go to the U.S. Supreme Court, where Justice Elena Kagan handles emergency requests from that circuit.

At the center of the fight is the list itself. The administration says federal agencies identified the 20,000 people as likely noncitizens, but California officials say the government has never shown how the list was built or proved anyone on it is ineligible. A preliminary review by Los Angeles County found that many people on the list did not have active voter registrations, and a sample check found roughly 1 in 4 were born in the United States. California’s Secretary of State’s office says federal officials claimed in July that the state had about 19,000 noncitizens on its rolls, then refused to provide proof when asked.

The state has also argued that the federal law the DOJ is relying on does not give the attorney general the power to ask a court for this kind of order in the first place.

California Attorney General Rob Bonta called Carter’s decision an important victory but warned the state is not done fighting. In a court filing before the ruling, he described the lawsuit as “a precursor to further interference here in California.”

California is not the only target. On Monday, federal prosecutors asked Washington state election officials to review a list of about 400 registered voters the DOJ believes are likely noncitizens.

For California voters, nothing changes for now. Carter’s ruling means ballots, including those from people on the federal list, continue to be processed and counted under state law while the appeal plays out. Voters who have not yet returned their ballots should still vote by Tuesday.

Dee Dee Henderson

Dee Dee Henderson is a Poli Alert journalist covering national politics, elections and the policies that hit closest to home for Black communities, from voting rights and the economy to the courts. She reports the facts first and isn't afraid to say what they mean, and her commentary pieces are clearly labeled as opinion. Her midterm coverage breaks down deadlines, ballot measures and the races that will decide who holds power in Washington.

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