The 9th Circuit Court of Appeals appeared skeptical of the Justice Department’s effort to compel California to set aside 20,000 mail-in ballots the Trump administration suspects may have been sent to noncitizens.
Justice Department attorney Matthew Donnelly faced several questions from a three-judge panel of the appellate court about the timing of the Justice Department’s lawsuit, which was filed Oct. 15, seeking to force the state to check its voter list against one the federal government created of suspected noncitizens. A sticking point came Sunday from whether a third-party vendor was involved in that list.
“If you take a step back, you are not able to explain who these third parties are that form some part in the chain of analysis over this list,” U.S. Circuit Judge Gabriel P. Sanchez, a Biden appointee, said to Donnelly “Your claims very much depend on the reliability of that list.”
The rare Sunday hearing before the appellate court came after the Justice Department demanded a lower court rule by Oct. 22.
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Donnelly pushed back when U.S. Circuit Judge Mark J. Bennett, a Trump appointee, asked if the Justice Department could have filed its lawsuit against California earlier because Donnelly “certainly knew that there was in your mind a problem well before that.”
“We could have filed a complaint, but we wanted to file the complaint that we filed,” Donnelly said, adding that the Trump administration had not fully processed the list of 20,000 voters that it delivered to California election officials before the date it filed the lawsuit.
California deputy attorney general, Samuel Siegel, said that his state has attestation rules requiring voters to certify that they are U.S. citizens and meet the other eligibility standards before casting their ballots.
“The executive branch may not like the way that California administers its elections, but nothing in the Constitution, the U.S. Code, or any other source of law entitles it to the extraordinary remedy that it’s seeking,” Siegel told the court.
Bennett appeared to agree and said that he has “a problem with the relief that’s being sought” by the administration because both “Congress and the California legislature have said noncitizens can’t vote.”
Bennett added that he sees the Justice Department’s lawsuit as effectively telling California “we don’t like the way you’re sorting citizens from noncitizens” and noted that he does does not believe the federal law prohibiting noncitizens from voting allows the Trump administration to tell “California how to do the sorting.”
The appellate court did not immediately issue a ruling.
The hearing Sunday comes nine days before the midterms and centers on the 20,000 ballots that Homeland Security Investigations and U.S. Citizenship and Immigration Services have identified as potential noncitizens on the California voter rolls.
The Justice Department sent California election officials a letter and a password-protected thumb drive on Oct. 13 with a 48-hour countdown to cross-reference the list of names against state voter lists. California Secretary of State Shirley Weber, a Democrat, said the DOJ identified voters it “believes are likely noncitizens who were sent a vote-by-mail ballot.”
California is one of six states that automatically sends out a mail-in ballot to every registered voter before an election, and the state started sending out ballots on Oct. 5.
On Oct. 15, the Justice Department sued the state of California and election officials Weber and Dean Logan, the registrar for Los Angeles County. The department pushed for an expedited ruling, and U.S. District Judge David O. Carter scheduled a hearing for Oct. 27.
The Justice Department wanted a decision sooner, and petitioned the 9th Circuit Court of Appeals for it to step in.
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