Ninth Circuit Won’t Order California to Set Aside Noncitizen Ballots

A federal appeals court refused to order California to set aside roughly 20,000 mail ballots tied to voters the Trump administration says are noncitizens. In a 2-1 decision handed down Monday, the Ninth Circuit Court of Appeals denied the Justice Department’s emergency request to pull those ballots out of the count while the voters’ eligibility is reviewed. The majority wrote that the government’s urgency was partly of its own making. Judge Patrick Bumatay dissented, arguing the federal government has a sovereign interest in protecting federal elections. The fight started October 15, when the DOJ sued California over a list of more than 20,000 registered voters that federal agencies had flagged as likely noncitizens. Prosecutors wanted the state to verify each name or keep those ballots separate from the rest. California refused, disputing both the underlying data and the short deadline it was given. Federal prosecutor Bill Essayli said the state made a stunning admission at a hearing a day earlier. According to Essayli, California told the court it does nothing to independently check the citizenship of its voters, and that any ballot already cast by a noncitizen would be counted if the judges did not step in. He said that is why his office asked for the emergency order, arguing that illegal votes dilute legal ones. The government has laid out how it built that list. Investigators started with California’s voter rolls, ran the names through commercial data to supplement public records, then checked them against immigration and Social Security files to screen out citizens and the dead before federal investigators reviewed the rest by hand. The three-judge panel that heard the case Sunday did not appear convinced. One Trump-appointed judge told the government that the order it wanted ran against the very law California had passed. The panel also pressed the DOJ on why it should jump in before the district court had even ruled. The case is one piece of a wider Justice Department push ahead of the November 3 election. Last week, prosecutors charged 28 green card holders in California with illegally registering or voting, and arrested 11 of them. All 28, the DOJ said, turned up on the flagged list. California’s Democrat attorney general has argued the federal theory would turn the Constitution on its head by letting Washington dictate how a state runs its own elections. Los Angeles County has said a sample of the federal list turned up people who reported being born in the United States. A DHS official pushed back in a sworn statement, saying USCIS records showed none of the sampled names were U.S.-born. The case has since returned to the district court, where a judge heard arguments Tuesday and did not immediately rule.