A Trump-appointed judge helped shut down the Trump administration’s attempt to freeze 20,000 California ballots this week, and the Justice Department is now on its third try to stop those votes from being counted before Tuesday’s election.
The fight started earlier this month, when the Justice Department sued California and Los Angeles County. It claims it has a list of more than 20,000 people who are “likely noncitizens” and received mail ballots. The DOJ wanted California to pull those ballots aside and not count them until each voter’s citizenship could be checked. California and Los Angeles County pushed back hard, arguing the list is unreliable and that the federal government has no power to change how a state runs its elections in the middle of voting.
When the district judge on the case had not ruled fast enough for the administration, the DOJ took an unusual shortcut and went straight to the 9th Circuit Court of Appeals, asking it to step in before the lower court had made a decision. On Monday, a three-judge panel said no in a 2 to 1 ruling.
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Circuit Judge Mark Bennett, who was appointed by Trump, wrote the decision, joined by Circuit Judge Gabriel Sanchez, a Biden appointee. The panel ruled that the appeals court did not have the power to step in yet because the lower court had not ruled, and sent the case back. Bennett also put part of the blame on the administration itself. “At least part of the delay here is attributable to the United States’s own delay in filing suit,” he wrote.
The lone dissent came from another Trump appointee, Circuit Judge Patrick Bumatay, who argued the panel should have given the administration what it asked for. “We should’ve granted the federal government relief,” Bumatay wrote, claiming federal law bars California from mixing ballots “likely cast by aliens” with legitimate ones.
Back in district court on Tuesday, U.S. District Judge David O. Carter, a Clinton appointee, questioned the government’s evidence head on. “Where is the evidence?” he asked Bill Essayli, the first assistant U.S. attorney in Los Angeles. Carter also said he planned to appoint a special master, an independent expert, to look into how the DOJ built its list.
On Wednesday, Carter rejected the request entirely. He said the administration was engaged in “a broad, ongoing pattern of attempted election interference” and warned that freezing the ballots would “wreak havoc” on an election already underway. More than 3.7 million Californians have already voted.
“Never before in American history has the federal government, on the eve of an election, sought to coerce a state and local government to abandon their own Constitutional elections procedures and bend to the will of the Executive Branch,” Carter wrote. “Over 20,000 registered Californians would potentially lose the right that generations of Americans have fought to preserve.”
Carter also raised questions about the list itself. Los Angeles County argued the government’s data was unreliable, and only a little over 7,000 of the 20,000 people on it had addresses in the county. The DOJ never said how many of the people on the list actually returned a ballot.
The judge also called out the administration for pressuring election workers. The DOJ had warned county officials they could face federal scrutiny and possible criminal exposure for continuing to process ballots from people on the list. “These threats must stop,” Carter wrote. He added that the DOJ can still prosecute any individual noncitizen it has evidence voted illegally, but it cannot rewrite California’s election rules to do it.
The Justice Department filed a new appeal to the 9th Circuit within hours of the ruling and said it would ask for emergency relief. That appeal was still pending Thursday. If the case reaches the Supreme Court, it would go first to Justice Elena Kagan, who handles emergency requests from the 9th Circuit. California votes Tuesday, November 3.
