The Justice Department's push to make California set aside about 20,000 mail ballots before the November 3 midterms lost at the Ninth Circuit on Monday and ran into a skeptical trial judge on Tuesday, who told government lawyers that if noncitizens voted, they should "Go out and indict."
A divided Ninth Circuit panel dismissed the government's emergency appeal on October 26, ABC News reported, saying it lacked jurisdiction because the case had not yet been decided below. The next afternoon, U.S. District Judge David O. Carter heard the government's request for a temporary restraining order in Los Angeles and ended the hearing without ruling. He said he would issue a ruling Wednesday, according to Democracy Docket. We covered the Sunday appellate argument in Appeals Judges Question Justice Department Bid to Hold 20,000 California Ballots.
What the appeals court said
The unsigned majority opinion, joined by Judges Mark Bennett, a Trump appointee, and Gabriel Sanchez, a Biden appointee, held that "the United States failed to allow the district court adequate opportunity to consider its application," Law Dork reported, linking the order. The department had asked Carter to rule within three business hours, then argued his silence was a "constructive denial" it could appeal.
The panel was blunt about the timing. "The United States's claimed emergency, at least in part, is a self-constructed one," the majority wrote, according to ABC. In separate concurrences, Bennett expressed "serious doubts that Plaintiff's preemption claim is likely to succeed on the merits," and Sanchez said the Purcell principle, which discourages courts from changing election rules close to an election, "would require us to reject the United States' request."
Judge Patrick Bumatay, a Trump appointee, dissented at length. "The federal government needn't helplessly stand by when States act to frustrate federal elections," he wrote, arguing California's handling of the ballots is likely preempted by federal law.
What happened before Judge Carter
Carter called the government's request a "monumental change" to an election already underway, ABC reported. He said he intends to appoint a special master to examine how the department built its list of more than 20,000 registered voters it calls likely noncitizens. He also criticized letters suggesting election workers could be prosecuted for counting those ballots. "This court believes it would be wise that any threats to state and county elected employees cease immediately," he said.
His sharpest point was about remedies. Federal law already makes noncitizen voting in federal elections a crime. "You've got a remedy for goodness sake. Go out and indict," he told the government, per Democracy Docket, and he asked why the court should risk disenfranchising voters "where voters would not be counted versus the ability to catch those few."
First Assistant U.S. Attorney Bill Essayli argued the state "cannot do nothing and proceed to count the votes," but conceded, "We're never going to stand here and tell you everything's 100%." Michael Cohen, arguing for the state side, said "Congress has told the states that attestation under penalty of perjury is sufficient to establish citizenship."
Our analysis: what the sample says about the list
Los Angeles officials checked a preliminary sample of 200 names from the government's list, ABC reported. Nearly 40% "indicate that they were born in the United States," and 71.2% had no voting history.
The newsroom's arithmetic: 40% of 200 is about 80 people in the sample who say they are U.S. born. If that rate held across the full list, which a 200 name sample cannot prove, roughly 8,000 of the 20,000 ballots would belong to people claiming birthright citizenship. And 71.2% with no voting history means about 142 of the 200 had never cast a ballot on record, so many names may not produce a ballot at all.
That is the core of Carter's question. Setting aside every ballot on the list would sweep in eligible voters to reach the "few" he mentioned. Carter pointed to California's December 3 certification date as the deadline to resolve the dispute and floated a later hearing with expert testimony. The case sits alongside other federal pressure on noncitizen voting, including the field operations a judge limited last week, covered in Judge Curbs DHS Hunt for Noncitizen Voters in Nine States.
Two Taps News stories summarize reporting and the analysis discussed on Two Taps and Friends. They are not legal advice. Read our standards.
