A three judge panel of the 9th U.S. Circuit Court of Appeals held a rare weekend hearing on Sunday, October 25, on the Justice Department's demand that California set aside mail ballots sent to about 20,000 people the federal government suspects are not citizens. Two of the three judges, one appointed by President Trump and one by President Biden, pressed the government's lawyer on whether federal courts can order a state to run its election that way, the Associated Press reported.
The department sued California on October 15 in the Central District of California, according to CBS News. It asks the court to stop the state from counting vote by mail ballots from likely noncitizens until their citizenship can be determined. The trial judge set a hearing for October 27, and the government appealed to the 9th Circuit seeking an expedited decision, the AP reported.
What the judges asked
Judge Mark Bennett, a Trump appointee, questioned whether the appeals court has jurisdiction before the lower court rules. He pointed to the Constitution's Elections Clause, which lets states set the manner of congressional elections, and suggested the executive branch may simply be "unhappy with what they're doing, and doesn't like the manner." Al Jazeera, citing Reuters, reported that Bennett told the government's lawyer the requested order would conflict with California law, asking, "How can we do that?"
Judge Gabriel Sanchez, a Biden appointee, asked whether the federal government was violating the Tenth Amendment by effectively commandeering the state. Judge Patrick Bumatay, a Trump appointee, sounded more sympathetic to the government. He said everyone has an interest in making sure only eligible citizens vote and told California's lawyer, "Without an injunction, you will never know."
The two sides
Justice Department lawyer Matthew Donnelly argued that California is causing irreparable harm "by allowing noncitizens to vote in violation of their own state laws," adding, "The damage is irreversible and irrevocable." When the suit was filed, Attorney General Todd Blanche said, "State-facilitated voter fraud is unacceptable in the United States of America."
Sam Siegel, representing Secretary of State Shirley Weber, told the panel the government's suspicions "have no basis in law or in fact," the AP reported. Seth Waxman, representing Los Angeles County Clerk Dean Logan, said about 2.75 million mail ballots are expected and that checking each against the list at three minutes apiece would take 140,000 hours of work. The county said a sample of 200 records from the list included canceled or inactive registrations and voters who appeared to be born in the United States. Gov. Gavin Newsom called the suit a "sad, desperate attempt by Trump" to suppress voters, according to Al Jazeera.
The criminal cases
On October 19 the Justice Department announced charges against 28 people across California in what it called Operation Protect the Vote. All 28 are lawful permanent residents, and the department said each appears on the list of more than 20,000 likely noncitizen registrants given to state officials. Charges include fraudulent voter registration, false statements on naturalization applications and, for six defendants in the Eastern District, voting by a noncitizen in a federal election. The department's release notes that all defendants are presumed innocent until proven guilty.
The law at the center
The Elections Clause gives states the first say over the "times, places and manner" of congressional elections, while Congress can make or alter those rules. The Tenth Amendment's anti-commandeering principle generally bars the federal government from ordering state officials to carry out federal programs. Those two ideas are why the judges kept asking whether a court, rather than Congress, can grant what the government wants. Siegel said the administration can ask Congress to change the process if it disagrees.
The panel said it would rule as quickly as possible. In a separate case this week, a federal judge restricted DHS field operations aimed at finding noncitizen voters. For more on how citizenship questions play out in court, see our story on what it would take to revoke a citizenship.
A fight over federal power, state power and ballots days before an election is the kind of case the Two Taps legal panel of Daniel Rosenberg, Michael Dye and Lloyd Golburgh takes apart on the show.
Two Taps News stories summarize reporting and the analysis discussed on Two Taps and Friends. They are not legal advice. Read our standards.
