A federal appeals court on Monday rejected the Justice Department’s emergency request to stop California from counting more than 20,000 disputed mail-in ballots, just days before the election.
The 9th U.S. Circuit Court of Appeals ruled 2-1 against the Trump administration’s effort to segregate ballots linked to voters whom federal officials suspect may be noncitizens.
Judges Mark Bennett and Gabriel Sanchez said the Justice Department had acted prematurely by appealing before the lower court had sufficient time to consider its request.
The ruling followed accusations from the DOJ that California officials had failed to make a meaningful effort to identify and remove suspected noncitizens from the state’s voter rolls.
The dispute is not settled. A federal judge is scheduled to hear arguments on the matter tomorrow.
“Those questionable ballots are now rolling in. Once those ballots are processed, it would be impossible to identify them, and they must be counted in the election,” Judge Patrick Bumatay, the court’s lone dissenter, wrote in a filing.
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“None of California’s counterarguments prevent the federal government from stepping in and seeking to stop California from burying its head in the sand while aliens may be voting in federal elections. We should’ve granted the federal government relief … because it encourages and induces illegal voting,” he continued.
The DOJ lawsuit alleges that state officials failed to meet a 48-hour deadline for reviewing nearly 20,000 names the administration had flagged as suspicious.
The district judge had set a hearing for Oct. 27, but the administration bypassed that schedule and took its request directly to the 9th Circuit.
“If California will make available or submit its records, we can quickly put them through our established systems to determine who’s a citizen and who’s not,” First Assistant U.S. Attorney Bill Essayli told Fox News last week.
Monday’s ruling came after an unusual emergency hearing held by Zoom on Sunday, during which Judges Bennett and Sanchez voiced strong skepticism about the administration’s appeal.
The case will now return to the U.S. District Court in California, where a hearing is scheduled for Tuesday at 1 p.m.