Ninth Circuit tosses Trump appeal in California election challenge

Two of the three judges, including a Donald Trump appointee, said the appellate court had no jurisdiction to issue an injunction shortly before a trial judge will hear the case.(CN) — The Ninth Circuit on Monday threw out the Trump administration’s emergency appeal to force California to set aside votes by residents who the administration maintains might not be U.S. citizens.The three-judge panel issued a decision the day after it held an unusual Sunday hearing.In a per curium order, which isn’t attributed by one particular judge, the panel said it had no jurisdiction over the case because the federal government gave the trial judge just 15 hours to consider its expedited request for a temporary restraining order before filing its appeal.“The United States’ claimed emergency, at least in part, is a self-constructed one,” the panel wrote. “At least part of the delay here is attributable to the United States’ own delay in filing suit, in realizing that existing California state law governs the issuance and processing of ballots, in recognizing that California has millions of registered voters and processes ballots on a schedule aligned with that scale, and in communicating to the court its desired relief.”The appellate panel granted the request by the Los Angeles County registrar-recorder/county clerk to dismiss the appeal.The Department of Homeland Security claimed in July that there were as many as 190,000 noncitizens included on California’s voter rolls, yet it waited until Oct. 15 to file a lawsuit to prevent the state from counting about 20,000 votes before it could be verified these weren’t from noncitizens.At the same time, the government had initially asked for a decision by Nov. 3 on its bid for a temporary restraining order, and U.S. District Judge David Carter set a hearing Tuesday afternoon in Los Angeles to hear arguments on the request.However, in the evening of Oct. 21, the government asked Carter to issue a decision by noon the next day because, it said, it had just learned LA County had already counted 331,000 mail-in ballots since Oct. 5.Seth Waxman, an attorney for the LA County registrar, argued at Sunday’s hearing that it wasn’t credible that the Justice Department was oblivious that the county had been counting early votes because that’s what it is required to do and the process is well publicized.The Trump administration claims California is violating the supremacy clause of the U.S. Constitution by knowingly facilitating the votes of noncitizens, thereby frustrating the federal prohibition against noncitizens voting in federal elections.At Sunday’s hearing, an attorney for the U.S. Justice Department failed to give a compelling explanation of the basis for the government’s claims that California permits noncitizens to vote and referred to third-party data bases that Homeland Security had checked against the state’s voter rolls.“Today’s ruling is a positive development and a welcome speed bump to Trump’s disgusting attacks on the Constitution and our country’s democracy,” California Governor Gavin Newsom said in a statement.U.S. Circuit Judge Mark Bennett, a Donald Trump appointee, wrote separately that even if the Ninth Circuit panel had jurisdiction over the government’s appeal, which he didn’t think they did, it was unlikely that the government would prevail on the merits of its appeal.“There is no dispute that it is unlawful under both federal and California law for noncitizens to vote,” Bennett said. “Rather, this dispute is about the procedures used to enforce that prohibition, which plainly implicates the elections clause of the U.S. Constitution.”The federal statute under which voting by noncitizens is criminalized, however, doesn’t preempt California’s comprehensive statutory scheme for conducting elections that has been duly enacted under the elections clause, he said.“There is nothing in the text of § 611 that preempts the states’ primary authority in election administration; California can still (and in fact, it must) craft its own procedures governing congressional elections and ballot challenges in those elections,” Bennett added.U.S. Circuit Judge Patrick Bumatay, also a Trump appointee, disagreed that the appellate panel had no jurisdiction to rule on the government’s appeal and echoed the federal government’s concern that a potentially large number of noncitizens’ ballots would be commingled with legal voters.“With the election only 14 days away and with every passing day bringing the possibility of more illegal votes, the federal government appealed to us,” Bumatay said. “Under Supreme Court precedent, this is enough to confer appellate jurisdiction.”U.S. Circuit Judge Gabriel Sanchez, a Joe Biden appointee, also wrote separately to stress that it would be unfeasible to require that California, which requires a resident to certify they are a citizen when they register to vote, to start sequestering tens of thousands of ballots in the middle of an ongoing election.“At the eleventh hour, the United States seeks to shift the burdens of its priorities onto California and co-opt the state into carrying out the executive branch’s policies on a massive scale,” Sanchez said.Representatives of the U.S. Justice Department didn’t immediately respond to a request for comment.Subscribe to our free newslettersOur weekly newsletter Closing Arguments offers the latest about ongoing trials, major litigation and rulings in courthouses around the U.S. and the world, while the monthly Under the Lights dishes the legal dirt from Hollywood, sports, Big Tech and the arts.Additional Reads