A rare Sunday federal appeals court hearing for the Justice Department’s voting lawsuit against California closed without a ruling.
The department requested that the court issue one by Tuesday prior to the scheduled 1 p.m. PDT hearing before the district court.
The arguments followed a surprise appeal by the Trump administration, which claims a district judge did not act quickly enough to address the administration’s allegations of roughly 20,000 potential noncitizen voters on the state’s voter rolls.
A three-judge panel that includes two appointees of President Donald Trump and one appointee of former President Joe Biden heard arguments on DOJ’s efforts to segregate ballots from the alleged noncitizens.
California officials have countered that the list is unverified and includes the names of lawful voters, despite recent charges announced by DOJ of roughly 28 individuals from the list accused of voting and immigration-related crimes.
Earlier the DOJ sent letters last week to every county in California asking local elections officials to help identify potential voters who may be in the U.S. illegally, according to a letter described to ABC News.
“Within 48 hours, we ask that you commit to working with DOJ and DHS to identify who on the accompanying list is a citizen and who is not,” according to a letter sent by Justice Department officials to every county in California and described to ABC News. “The Department strongly urges you and your agency to work with the Department of Justice to ensure the integrity of California’s federal elections before taking actions that risk significant federal scrutiny and legal exposure.”
Earlier this month, the DOJ filed suit against California accusing the state of failing to review a list of alleged noncitizens that the Trump administration claimed were sent mail-in ballots for next month’s midterm election.
In court papers filed earlier this week, Los Angeles officials said a preliminary analysis of 200 of the names on the 20,000-person list, included a “high percentage” of individuals who say they were born in the U.S. and many more who have no voting history at all.
Of those 200 individuals, officials said, nearly 40% “indicate that they were born in the United States, which is strong evidence of citizenship; and 71.2% of the records have no voting history,” according to a filing.
The Justice Department’s rushed efforts to have an appeals court quickly rule on its lawsuit faced considerable skepticism from the three-judge panel in Sunday’s emergency hearing.
Circuit Judge Mark Bennett, a Trump appointee, repeatedly questioned whether the appeals court had jurisdiction to step in at this stage in the litigation, and expressed considerable constitutional concerns over the lawsuit itself.
“I don’t see how we have jurisdiction,” Bennett said to DOJ attorney Matthew Donnelly after pressing him over the timeline of the government’s decision to seeking emergency appeal when a hearing before the district judge is already set for this Tuesday.
Donnelly claimed that the DOJ’s decision to seek relief from the appeals court came after disclosures by the state of the numbers of mail-in ballots already being processed in advance of the election — which number in the hundreds of thousands.
But Bennett’s most significant concerns appeared to be the nature of the lawsuit and it appearing to directly contradict the Constitution’s Elections Clause — which mandates that states have jurisdictions over the manner their elections are run.
“How can it preempt something that is expressly authorized by a provision of the Constitution?” Bennett asked. “How can the legislature making laws with regard to the manner of holding elections be preempted by a criminal statute passed by the Congress, especially when both the Congress and the California Legislature have made it illegal for non-citizens to vote?”
Donnelly repeatedly pointed to DOJ’s position that the way California is administering its elections — and not acting on the hard drive of potential 20,000 likely non-citizens — infringes on the federal government’s ability to enforce the federal statute barring voting by illegal immigrants.
That explanation didn’t appear to sit well with Bennett, however, who pointed out that the Constitution specifically tasks Congress with jurisdiction over how states administer their elections and not the Judiciary.
“How can we, a federal court, do what is reserved to Congress, which Congress, in my view, hasn’t done?” Bennett asked.
“Your Honor, I would just simply — unfortunately — disagree with you that 18 USC 611 is not an election law that fits in the power of Congress,” Donnelly replied.
The judges also appeared to express concern about last-minute intervention to force California to segregate certain mail-in ballots given the state has provided a declaration saying if such an order was implemented it could have a “catastrophic” impact on tabulating the upcoming election.
Circuit Judge Patrick Bumatay, a Trump appointee, repeatedly pressed California’s attorney Samuel Siegel over why an injunction wouldn’t be appropriate to ensure non-citizens votes are being actively cast in the ongoing election.
“Without an injunction, you will never know, correct?” Bumatay asked. “Because if — if the ballots are cast and separated, then they’re going to be tabulated, and there’s no way of knowing.”
“Your Honor, we would respectfully disagree with that because of the number of steps that people have to take to attest to their citizenship, to declare consistent with what is required by both federal and state law that they are citizens when they register to vote,” Siegel responded.
Even as Bumatay’s questioning suggested he had more sympathy to granting the government some kind of relief, both Bennett and Circuit Judge Gabriel Sanchez, a Biden appointee, appeared unified that the extraordinary relief being sought by DOJ was not appropriate at this juncture.
“That’s why I have a problem with the relief that’s being sought here because I just don’t see — Congress and the California legislature have said non-citizens can’t vote, and this lawsuit is about ‘we don’t like the way you’re sorting citizens from non-citizens, and I just don’t see 611 as telling California how to do the sorting,” Bennett said.
“That’s absolutely right, Your Honor, and to reiterate my earlier point, if the federal government, if the Executive Branch wants that authority in the first instance, they need to go ask Congress for it, they haven’t done that,” Siegel said. “They ask this court to short circuit the democratic process and issue an order, not just on the eve of an election, but as an election is underway.”
In closing remarks, Bennett said the panel “will try to decide this case as quickly as possible.”
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