A federal appeals court panel on Sunday pressed the Justice Department over the timing, constitutional basis and legal authority behind its demand that California election officials isolate thousands of mail-in ballots linked to people the government suspects may not be U.S. citizens.
During an unusual weekend hearing, two of the three judges on the 9th U.S. Circuit Court of Appeals appeared doubtful about the Trump administration’s lawsuit, filed in mid-October. The case claims California officials failed to meet a 48-hour deadline to investigate roughly 20,000 names the administration identified as potential noncitizens on the state’s voter rolls.
The Justice Department asked a federal judge to prevent California from counting the ballots until the voters’ immigration status could be confirmed. Although the district judge set a hearing for Oct. 27, just days after receiving the case, the administration appealed to the 9th Circuit and requested an accelerated ruling.
Justice Department attorney Matthew Donnelly argued that California was creating irreparable harm by permitting possible noncitizens to vote in violation of state law. “The damage is irreversible and irrevocable,” he told the judges.
The Trump administration has made locating and preventing noncitizen voting a major priority this year, despite the fact that such voting is exceedingly uncommon.
Circuit Judge Mark Bennett, an appointee of Trump, raised a preliminary question about whether the appeals court had jurisdiction to intervene before the district judge had issued a decision.
Donnelly countered that the lower court’s timetable was effectively a rejection of the federal request because California election officials were counting thousands of mail ballots each day.
Judge Gabriel Sanchez, appointed by former President Joe Biden, questioned whether the federal government’s demand violated the Tenth Amendment by requiring California to administer a federal law that makes voting by noncitizens a misdemeanor.
Donnelly said Washington was merely asking California to enforce its own ban on noncitizen voting. He argued that the state’s refusal to separate the flagged ballots for additional review was “frustrating the purpose” of the federal prohibition.
Bennett pointed to the Constitution’s Elections Clause, which gives state legislatures authority over the time, place and manner of congressional elections. The executive branch might dislike California’s procedures, he said, but the provision allows the state to decide how elections are conducted—including how potential noncitizen voters are handled.
Seth Waxman, representing Los Angeles County Clerk Dean Logan, argued that the federal list was deeply unreliable. Setting aside ballots based on that list, he said, could effectively disenfranchise thousands of eligible voters.
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Waxman estimated that checking all 2.75 million expected mail ballots against the government’s list would require about 140,000 staff hours, even if each review took only three minutes. That workload, he said, amounted to roughly 16 years of full-time work.
He cited a Los Angeles County examination of 200 records included on the administration’s list. Assistant Registrar-Recorder Monica Flores said in a court filing that the sample contained canceled or inactive registrations, people with no voting history and voters who appeared to have been born in the United States—something the filing described as “strong evidence of citizenship.”
Sam Siegel, representing California Secretary of State Shirley Weber, said the administration could ask Congress to revise election procedures if it objected to the way California conducts its elections.
Siegel also maintained that the federal government had offered no credible evidence to substantiate its concerns about the ballots.
“It has no basis in law or in fact,” Siegel told the panel. “We just dispute the premise that noncitizens are voting.”
Judge Patrick Bumatay, another Trump appointee, said the public has a shared interest in ensuring that only eligible citizens cast ballots. He suggested that an emergency order could bring clarity to the dispute.
“Without an injunction, you will never know” whether noncitizens are voting, Bumatay told Siegel.
Bennett said the panel would work to release its decision as soon as possible.
___ Boone reported from Boise, Idaho.
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