A federal appeals court on Friday rejected the Justice Department’s emergency bid to force California to set aside mail-in ballots associated with roughly 20,000 suspected noncitizens, opening a potential path to the Supreme Court days before the midterm elections.
The 9th U.S. Circuit Court of Appeals voted 2-1 to deny an injunction requiring officials to separate the flagged ballots and verify voters’ citizenship before counting them. The decision matches the same vote that was handed down in a Monday denial by the same panel.
Judge Mark Bennett, appointed by President Donald Trump, joined Judge Gabriel Sanchez, appointed by former President Joe Biden, in the majority. Judge Patrick Bumatay, another Trump appointee, dissented.
The majority concluded the DOJ had not established that federal law clearly authorized its proposed intervention or that the government’s list reliably identified noncitizens.
The requested relief risked “the disenfranchisement of eligible voters and putting the entire tabulation process in jeopardy,” the majority wrote in its 41-page decision.
The decision follows U.S. District Judge David Carter’s Wednesday denial of emergency relief. Unlike its Monday dismissal of DOJ’s earlier appeal as premature, the same appeals court panel found it had jurisdiction to consider the renewed request this time. Carter is an appointee of former President Bill Clinton.
The majority on the appeals court questioned the DOJ’s authority to override California’s ballot-challenge procedures and invoked Supreme Court precedent cautioning against changing election rules shortly before voting concludes.
Bumatay, who also dissented from the two other judges on Monday, issued a similar dissent to his previous one on Friday, arguing that separating the ballots would preserve eligibility checks without canceling or threatening any eligible voter’s ballot.
“This solution would not cancel any vote but would allow time to verify the eligibility of suspected noncitizens,” he wrote.
The DOJ’s effort rests on a legitimate election-integrity concern, which is that federal law prohibits noncitizens from voting in federal elections, and once a mail ballot is separated from its identifying envelope and mixed with others, an unlawful vote generally cannot be traced back and removed.
Federal investigators used voter-registration records and immigration data to flag roughly 20,000 potentially ineligible voters, arguing that temporarily separating their ballots would preserve the opportunity to verify citizenship before counting them. Those matches provided the basis for needed relief, according to the department. California disputes its list’s reliability.
The fight widened Thursday as grand jury subpoenas to California election officials came to light, seeking records related to federal allegations of noncitizen voting.
Separately, the Democratic Senatorial Campaign Committee, Senate Minority Leader Chuck Schumer (D-NY), House Minority Leader Hakeem Jeffries (D-NY), and other Democratic plaintiffs are challenging federal demands that states remove voters or withhold ballots.
JUDGE DENIES DOJ EFFORT TO ISOLATE 20,000 CALIFORNIA MAIL BALLOTS
U.S. District Judge James Boasberg, an appointee of former President Barack Obama, said he would rule by Monday on their request to block further demand letters unless the administration commits to stopping them before the election. An order restricting those demands would not, by itself, invalidate the subpoenas or halt the criminal investigation.
Friday’s denial in the California case leaves the department able to seek emergency Supreme Court intervention before Tuesday’s midterm elections.