My fellow Californians, let’s start with the intelligence test.
Our great state has been voting since early October. People have been mailing their ballots, delivering them to collection locations and even showing up at in-person centers.
So raise your hand if you knew — or just assumed — that election officials did something with those ballots when they arrived, other than just tossing them in a pile.
Congratulations, those who raised their hands. You are now officially smarter than the entire U.S. Department of Justice. Or at least more honest.
On Sunday, Justice Department attorneys managed to get a three-judge panel of the Ninth Circuit Court of Appeals to convene a rare emergency hearing because, oh my god, people were actually voting while California was processing the ballots!
Who might know?
Even though the law states that counties must count ballots in a timely manner; even though this has happened in every other election; even though the secretary of state publishes online the number of ballots received each day; and even though there are live cameras in Los Angeles processing ballots, it claims, somehow the U.S. government was unaware that normal election procedures were taking place.
As late Friday, Justice Department lawyers read a document filed by attorneys for the California Department of Justice stating that Los Angeles was, in fact, Open your mail-in ballot, DOJ realizes ballots are Opening. Los Angeles currently has about 600,000 people
Gen. Samuel P. Siegel, California’s deputy attorney, called this “ridiculous on its face.”
Armed with this previously unknown information, Trump’s lawyers are begging the appeals court to take their fragile, constitutionally questionable case away from the judge, who has promised to rule on their request on Tuesday and grant them an immediate injunction to further their election conspiracy claims.
Most people know the background of the show, but here’s a quick recap.
President Trump has falsely claimed for years that Democrats colluded with undocumented people to help them sneak into the United States in exchange for large numbers of illegal votes cast for Democrats. That didn’t happen, but the president became so obsessed with the conspiracy that he weaponized the Justice Department and attacked states, especially California, to prove his delusions correct and, perhaps, as a reward, undermine democracy.
A few months ago, the Justice Department came to California claiming to have a list of 190,000 people it believed were illegally registered to vote. The list has since been reduced to 20,000 people. But in a no-holds-barred effort, only 28 people in California were indicted by the federal government, and not all of those cases appear to have been successful.
Undeterred, Trump’s lawyers are trying to get a California judge to order the state (and Los Angeles) to set aside ballots they say are questionable. They asked the judge in the case for a temporary restraining order to force Los Angeles County to do so, and the judge agreed to rule on the request early next week on an already expedited basis.
But then Trump’s lawyers learned all about the ballot processing and asked a judge to rule by Saturday afternoon — though the reasoning here seemed dubious. When the federal judge assigned to the case failed to rule on Saturday, a ridiculous request that didn’t even give attorneys enough time to file briefs, the FBI went to the Ninth Circuit to claim that Saturday’s failure to rule was effectively a denial of their request.
Basically, Trump’s lawyers appear to be arguing two things. First, once the ballots are counted they cannot be counted again, and if there are illegal ballots, that hurts all voters. Sure, okay.
But again, there is no evidence that this is happening in any widespread way, and lists of potential voting offenders compiled by the government have been shown to be riddled with errors. They may also involve using mysterious non-governmental “third parties” to gather information that even Trump’s lawyers were unable to identify on Sunday.
Justice Department lawyers also claim they just learned that once a ballot is removed from the envelope, it cannot be re-linked to the voter who cast it – because our ballots are anonymous. So, twenty thousand ballots had to be snatched away before being separated from the documents inside.
Lawyers didn’t explain why they needed to know how A person voted to confirm that they voted illegally. The envelopes were retained by county election officials, but Trump’s lawyers apparently believed it was crucial to tie them to specific ballots.
But here’s the thing – there simply aren’t enough illegal voters to sway elections in Los Angeles or California. We now have a system to identify questionable ballots and a separate criminal system to hold illegal voters accountable. Two weeks before an election is not the time to ask for ballots to be withheld—unless you want to undermine trust.
Appellate judges seemed unimpressed by federal layman arguments, questioning more than once whether the Ninth Circuit had jurisdiction because states, not the federal government, are responsible for elections. There’s even some interpretation of the Tenth Amendment. You know, those “Don’t Tread on Me” people like to write: “The powers not delegated to the United States by the Constitution, nor prohibited to the States, are reserved to the States.”
We should expect an early ruling, but the real question remains, why the urgency? The U.S. Department of Justice is embroiled in a separate voting lawsuit in Washington, D.C., with plaintiffs led by the UCLA Voting Rights Project asking for its own restraining order to prevent the government from creating a national list of who it believes should vote and using rudimentary secret information collection to do so.
Indeed, the original case was reassigned from a Trump-appointed judge to a Bill Clinton-appointed judge. There has been speculation that the federal government may be unfavorable to the switch, although Judge David O. Carter, a Clinton appointee, took on the case because of his experience on the subject.
A decision on DC’s restraining order could be made in the coming days. I’m not saying these cases are related or that judges should or do matter, but the Trump Justice Department’s argument in California is basically that its list of 20,000 people is indeed reliable information.
If a federal judge in Washington, D.C., first rules that the government’s collection of information may have been excessive and sloppy, it will be more difficult for another judge or an appeals court to rule that the list is so important that they must intervene.
So maybe there’s an emergency.
Just not in the way the government claims.