A federal judge in Los Angeles signaled skepticism Tuesday toward a Trump administration request to immediately block California from counting about 20,000 ballots from voters whose citizenship the administration questions, one day after a federal appeals court rejected the same request.1,3,4,8
U.S. District Judge David O. Carter, an appointee of President Clinton, ended a 3½-hour hearing in Los Angeles without ruling, saying he needed more time and would decide Wednesday. The Justice Department wants the ballots set aside until the voters prove their citizenship. Carter said the demands would represent a “monumental change” to California elections and said he was worried about disenfranchising eligible voters.1,3
Carter made one exception to his need for more time. “This court believes it would be wise — that it would be wise — that any threats to state and county elected employees cease immediately,” he said. The Justice Department had sent formal letters to election officials statewide the week before warning them of criminal penalties if they counted any of the flagged ballots. First Assistant U.S. Atty. Bill Essayli, the top federal prosecutor in Los Angeles who argued for the administration, denied threatening state officials and repeated that position in court Tuesday.1
On Monday, a three-judge panel of the 9th U.S. Circuit Court of Appeals ruled 2-1 that it lacked jurisdiction to hear the case at that stage, sending it back to Carter’s courtroom. Circuit Judges Mark Bennett, appointed by President Donald Trump, and Gabriel Sanchez, appointed by President Joe Biden, were in the majority. Circuit Judge Patrick Bumatay, also a Trump appointee, dissented.1,4,8
In their ruling, Bennett and Sanchez wrote that “the United States’s claimed emergency, at least in part, is a self-constructed one,” citing in part the government’s own delay in filing suit. Sanchez also wrote that the administration was asking “the federal court to dictate to a state legislature a matter squarely within the state’s traditional domain,” and warned that granting the request would be “inviting disorder and confusion for voters and election officials alike.”4,8
The Justice Department sued California, Secretary of State Shirley Weber and Los Angeles County Registrar-Recorder Dean Logan on Oct. 15. The suit followed a demand from Acting Deputy Atty. Gen. Trent McCotter that Weber and Logan set aside the ballots of 20,000 flagged voters within 48 hours. McCotter described those voters as “likely noncitizens.” Department attorneys later took the matter to the appeals court after Carter did not agree to a deadline they had set for him to rule on a temporary restraining order.1,4,8
The administration has not publicly revealed how it created the list or determined that the flagged voters were ineligible. In court papers filed last week, Los Angeles officials said a preliminary analysis of 200 names on the list found that nearly 40% “indicate that they were born in the United States, which is strong evidence of citizenship; and 71.2% of the records have no voting history,” according to a filing.4,8
At the hearing, Carter questioned how the administration had derived the list. “What are these systems? What are the algorithms? How was this derived?” he said. For voters who do vote illegally, he told Essayli, “you’ve got a remedy, for goodness sakes.” He added: “Go out and indict.”1
Essayli said the government was in court “on a very narrow request for an injunction to separate ballots of those suspected of being noncitizens” until the state can prove their citizenship. “We’re not telling California what they have to do. We’re telling them what they can’t do, which is just count these ballots without doing more to ensure whether they’re citizens or not,” he said. He argued that the “reliability and credibility” of the federal process for flagging the voters is unquestionable, adding, “We’re never going to stand here and tell you that everything is 100%.” He also said he was surprised at how “adversarial” state officials had been.1
Attorneys for Weber and the state said the demand “distorts several legal doctrines beyond recognition” and is clearly illegal, particularly during an ongoing election. They said the administration had provided no evidence the 20,000 voters are not citizens. Michael Cohen, a deputy attorney general for the state, said the administration was questioning a California law that lets voters attest to their citizenship under penalty of perjury, a standard he said was set by Congress, not the state. Anne Bellows, another deputy attorney general, said the administration was trying to “sweep it off the table” and called the approach a “recipe for disenfranchisement” of thousands of legitimate voters. “The stakes here are enormous,” she said.1
Attorneys for Logan said the administration had made its demands “without any credible argument” as to their legality and called the proposed remedy “vague and unworkable.” If the administration wants to question California’s processes, they said, “the proper audience for that argument” is Congress, not the federal court. Weber, in a letter earlier this month, called the department’s claims “vague and unsubstantiated.” She also noted that the Department of Homeland Security earlier this year claimed California had 190,000 registered voters who “may be” noncitizens, without giving details of how it reached that figure.1,3
California Attorney General Rob Bonta called Monday’s decision a victory for voting rights and a rejection of the administration’s “unlawful overreach.” Governor Gavin Newsom accused Trump of carrying out an “assault on democracy.” In a statement, Newsom said, “Today’s ruling is a positive development and a welcome speed bump to Trump’s disgusting attacks on the constitution and our country’s democracy.”3
Trump posted on Truth Social on Monday that he would offer a $1 million reward for anyone whose report led to an arrest or conviction for voter fraud. He has long claimed that noncitizen voting is rampant, while experts say such voting is rare. Essayli said the administration would wait to see what Carter decides Wednesday, but he said it was likely to appeal the matter back up to the appellate court.3,8,1
