A federal appeals court panel in California appeared unlikely on Sunday to immediately grant the Justice Department's request that counties set aside about 20,000 mail-in ballots from voters the government says are likely noncitizens, and the hearing closed without a ruling.1,3
The Justice Department sued California earlier this month, accusing the state of failing to review a list of alleged noncitizens that the Trump administration said had been sent mail-in ballots for the midterm election. The suit, filed Oct. 15, roughly three weeks before Election Day, asks a judge to bar the state from counting mail-in ballots from people the federal government has identified as likely noncitizens.3,5
The department asked the appeals court to issue a ruling by Tuesday, before a scheduled 1 p.m. PDT hearing before the district judge. The Trump administration has argued that the district judge did not act quickly enough to address its allegations of roughly 20,000 potential noncitizen voters on the state's voter rolls. The three-judge panel includes two appointees of President Donald Trump and one of former President Joe Biden.3
Circuit Judge Mark Bennett, a Trump appointee, repeatedly questioned whether the court had jurisdiction at this stage. "I don't see how we have jurisdiction," Bennett said to DOJ attorney Matthew Donnelly. Bennett also pressed on the lawsuit's constitutional footing, asking, "How can it preempt something that is expressly authorized by a provision of the Constitution?" His most significant concerns appeared to involve the Constitution's Elections Clause, which gives states authority over how their elections are run.3
Donnelly argued that California's administration of its elections, rather than acting on the list of potential 20,000 likely noncitizens, infringes on the federal government's ability to enforce the federal statute barring voting by illegal immigrants. He said the department sought relief after the state disclosed the number of mail-in ballots already being processed, which he put in the hundreds of thousands. Bennett responded, "How can we, a federal court, do what is reserved to Congress, which Congress, in my view, hasn't done?" Donnelly replied, "I would just simply -- unfortunately -- disagree with you that 18 USC 611 is not an election law that fits in the power of Congress."3
Circuit Judge Patrick Bumatay, also a Trump appointee, pressed California's attorney, Samuel Siegel, on why an injunction would not be appropriate to ensure that noncitizens were not casting votes in the ongoing election. "Without an injunction, you will never know, correct?" Bumatay asked. Siegel said the state would "respectfully disagree" because of the number of steps people must take to attest to their citizenship when they register to vote. The state has submitted a declaration saying that such an order could have a "catastrophic" impact on tabulating the upcoming election.3
Bumatay's questions suggested more sympathy for granting the government some form of relief. Bennett and Circuit Judge Gabriel Sanchez, a Biden appointee, appeared unified that the extraordinary relief the department sought was not appropriate at this juncture. Bennett said that Congress and the California legislature "have said non-citizens can't vote," and added that he did not see the statute as telling California how to do the sorting.3
The arguments came as the Justice Department has also pressed county officials directly. Letters sent by Justice Department officials to every county in California, described to ABC News, asked local officials to "commit to working with DOJ and DHS to identify who on the accompanying list is a citizen and who is not" within 48 hours. The letters, sent on Friday, requested sensitive information, including Social Security numbers, on roughly 20,000 voters, according to The Associated Press.3,5
Election officials across California have said they are confused and frustrated. John Tuteur, registrar of voters for Napa County, said two uniformed Department of Homeland Security officers delivered a letter to his office late Friday listing 42 people accused of being noncitizens illegally registered to vote. Roughly 86,000 people are registered to vote in the county, and about 11,000 had already cast a mail-in ballot as of Friday. "All of this is simply meant to raise huge doubts about the integrity of this election," Tuteur said. He added, "We're not changing anything we're doing. We're proceeding with the election." In rural Amador County, Clerk-Recorder Kim Grady was waiting for more guidance from the state before the deadline.5
Justice Department spokeswoman Kiersten Pels said in a statement on Saturday that the department is explicitly "not requesting a purge, cancellation of registrations, or any programmatic action," and that federal officials were asking for collaboration to "ensure the most secure election in California history." The letters followed a statewide sweep on Monday in which 28 people from the list were charged with illegally registering to vote, and some were also charged with illegally voting and lying on naturalization paperwork. Those charges could lead to years in prison. Earlier this month, Attorney General Todd Blanche announced federal charges against 10 people in Minnesota alleged to have voted illegally over the last three elections.5,3
Bill Essayli, the top federal prosecutor in Los Angeles, said in a statement, "The letters speak for themselves. Any election official who knowingly processes the ballot of a noncitizen is opening themselves to legal jeopardy." California officials have countered that the list is unverified and includes the names of lawful voters. The state attorney general's office said the letters contained errors, including that Mendocino County officials received a list of people who were not residents there, according to a state court filing.5,3
In court papers filed earlier this week, Los Angeles officials said a preliminary analysis of 200 names on the 20,000-person list included a "high percentage" of individuals who say they were born in the U.S. and many more with no voting history. Nearly 40% of those 200 "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.3
Some California counties are already counting ballots. Election officials said they have begun tallying ballots that have arrived from the state's 23 million registered voters, and in Los Angeles, more than 331,000 mail-in votes had already been counted as of Friday. A hearing before the district judge is set for Tuesday at 1 p.m. PDT, and the appeals court had not issued a ruling when Sunday's arguments ended.5
