In a rare hearing on Sunday, a federal appeals court judge appointed by President Trump questioned whether the Trump administration’s request to intervene in California’s ongoing midterm elections to force state officials to set aside 20,000 ballots from voters whose citizenship was in question was consistent with the U.S. Constitution.
Judge Mark J. Bennett said that while the executive branch was “not satisfied” with California law’s requirement to ensure voters are citizens, the state has the power to determine the conduct of elections under the Constitution’s Elections Clause and that Congress did not challenge the process despite having the ability to do so.
“It seems to me that you want us to issue a ban that is completely inconsistent with the law passed by the California Legislature under the election provisions,” Bennett said. “How can we do this?”
Justice Department attorney Matthew Donnelly said the Trump administration had good reason to believe the votes came from ineligible noncitizen voters and had the legal right under a separate federal criminal law to challenge their statistics until state officials could prove otherwise.
Donnelly said federal criminal law and state election laws prohibit noncitizen voters from voting, but “the problem is California is not interested in enforcing that provision.”
The exchange came during an hour-long hearing before a three-judge panel of the 9th U.S. Circuit Court of Appeals on the Justice Department’s unprecedented emergency request for the court to order California Secretary of State Shirley Weber and Los Angeles County Registrar/County Clerk Dean Logan to immediately halt the counting of 20,000 marked voters’ ballots to clearly certify them until they are U.S. voters.
The appeals panel did not rule, but given the urgent nature of the appeal, a decision is expected soon. Bennett, Circuit Judge Patrick J. Bumatei, another Trump appointee, and Gabriel P. Sanchez, an appointee of President Biden, also joined the appeals panel.
While Bennett and Sanchez both raised questions for Donnelly about how the Trump administration’s position complies with the law, it’s unclear how it will rule.
Rick Hasen, director of the Safeguarding Democracy Project at the UCLA School of Law, wrote online on Sunday that the court seemed “likely to reject” the Trump administration’s appeal, with Bennett and Sanchez “expressing profound doubts about both the jurisdiction and the merits of the case.”
In addition to questioning its constitutionality, Bennett questioned how the appeals court had jurisdiction over the case because the Trump administration appealed the matter to the appeals court before the lower district courts had a chance to evaluate the facts or issue an order.
“How do we have jurisdiction when the district court says it’s going to rule quickly?” Bennett said. “I don’t understand how we have jurisdiction.”
Bennett also questioned why the appeals court should ignore claims by state election officials that complying with the Trump administration’s demands in the remaining days before the Nov. 3 election would be catastrophically damaging to the election because lower courts have not had a chance to evaluate those claims.
“Isn’t that enough to give us pause and consider whether we should take action? [a state expert] Will Evers cause disaster? asked Bennett.
Bennett’s question triggered many of the arguments the state made in its own case filings, which California deputy attorney Samuel Siegel repeated during the hearing.
Siegel said there was “nothing” for the appeals court to review given that there was no fact-finding, no order from a lower court and the government’s request was unconstitutional and illegal. He said the court should not have to grapple with many of the arguments raised by the Trump administration because it should dismiss the appeal for lack of jurisdiction and send the matter back to the lower court.
Boumatei seemed most interested in the three justices being in the damage caused when non-citizens vote, and the fundamental question of how the state should deal with objections from so-called non-citizen voters.
Seth Waxman, an attorney for Siegel and Logan, said existing procedures require challengers to provide extraordinary evidence, but they said the Trump administration did not do that for the 20,000 voters it flagged.
Sanchez has repeatedly questioned the origins of the government’s lists, asking which third parties were involved in providing the data. Donnelly was unable to answer, which Sanchez said raised questions about the reliability of the list.
The Justice Department appealed the case after a lower district court judge last week declined to immediately rule on its request for a temporary restraining order to bar California officials from tabulating marked ballots.
In court filings, the government argued that once a mail-in ballot is removed from an envelope in California or cast in person, “there is no way to link a voter to the ballot” or to re-isolate it from other cast ballots.
Lawyers for California, Weber and Logan argue the requirements are unlawful, impossible to comply with before the Nov. 3 election and are based on deeply flawed federal immigration and third-party data sets that have been shown to be inaccurate and contain legal voters.
They argued in court documents that the Trump administration’s arguments are “based solely on suspicions raised by questionable data” and that its lawsuit is at best a “reckless political stunt” and at worst “threats to disenfranchise thousands of Californians in this election.”
Independent election experts said the Justice Department’s efforts violated the department’s long-standing policy not to intervene in election-related matters within 90 days of an election to avoid disenfranchising legitimate voters.
They also say the Trump administration’s so-called non-citizen voter lists and its power to intervene are questionable, in part because the U.S. Constitution authorizes states to conduct elections under the supervision of Congress rather than the executive branch.
The Justice Department filed charges against California, Weber and Logan on October 15, and the acting deputy attorney general filed the charges two days later. Gen. Trent McCourt wrote to Weber and Logan, giving them 48 hours to reserve ballots for 20,000 flagged voters — who McCourt claimed “may be non-citizens.”
First Assistant to the United States Attorney. Bill Essayli, the chief federal prosecutor in Los Angeles, claimed federal authorities had “overwhelming evidence” that tens of thousands of noncitizens were registered to vote in California and defended the methods used to identify those voters. He and other federal prosecutors in the state also recently charged 28 legal permanent residents of California with election-related crimes, including illegally registering to vote.
On Friday, the Justice Department sent letters to county election offices across the state asking them to separate ballots from voters the Trump administration considers to be noncitizens from lists of 20,000 people involved in the Weber and Logan cases. In the letters, the Justice Department gave county officials 48 hours to comply with the demands and threatened criminal penalties if they refused.
State officials said that neither Essaly nor other Trump administration officials provided evidence to support their claims and that their list of 20,000 voters was clearly inaccurate. Logan said an initial review of some of those voters found many were born in the United States, were not registered and had never voted.
More than 3 million people have voted in California and more than 500,000 people have voted in Los Angeles County.
The challenge to 20,000 votes cast in California is just the latest attempt by the Trump administration to interfere in state elections ahead of the midterm elections.
Federal judges in dozens of states have dismissed Justice Department lawsuits requiring states to turn over voter rolls to the Trump administration. Federal judges also rejected multiple executive orders by Trump seeking to establish nationwide voter ID and citizenship checks, as well as his administration’s attempt to authorize the U.S. Postal Service to review mail-in ballots.
Other cases — including one involving the Trump administration’s use of unverified and inaccurate federal data sets to question the citizenship status of state voters — are pending.
Democrats and voting rights groups are also bracing for new lawsuits from the Trump administration challenging key election results that the president dislikes — and are already defending a Justice Department lawsuit in Alaska filed at Trump’s urging to preemptively challenge Democrats’ victory in Senate elections because a third candidate had a similar name to a Republican incumbent.
Times staff writer Brittny Mejia contributed to this report.