On a Sunday afternoon in late October, a federal appeals panel in San Francisco spent nearly two hours wrestling with a question that sits where election law, citizenship, and the limits of federal power meet: whether roughly 20,000 California mail ballots, sent to people the Justice Department suspects are not citizens, should be held back while their eligibility is examined. The judges, some of them appointed by a president who pressed for the request and some by his predecessor, seemed reluctant to reach the merits before a lower court had spoken, and skeptical that the Constitution's grant
Ninth Circuit Panel Presses DOJ on Emergency Bid to Set Aside 20,000 California Mail Ballots
"How can we do that?"
Mark
Why does a two-hour hearing on Sunday matter so much?
Mimi
Because ballots are being counted while it plays out. More than 3 million Californians have already voted, and the Justice Department says each day of delay means more of the contested ballots get processed.
Mark
What's the core legal problem the judges raised?
Mimi
Judge Bennett, a Trump appointee, asked how the court could issue an injunction that conflicts with a California law adopted under the Elections Clause. That clause gives states authority over how congressional elections are run, unless Congress acts.
Luke
Worth noting that's a question, not a ruling. Judges probe both sides at oral argument, so we can't read an outcome from it.
Mark
And the jurisdiction issue?
Mimi
Judge Sanchez asked why the appeals court should step in when Judge Carter hasn't ruled. His hearing is Tuesday. The DOJ came to the Ninth Circuit after Carter missed a deadline the department had requested.
Mark
What about the 20,000 figure?
Luke
That's the government's list of people it suspects are noncitizens. It's a suspicion, not an established count. California disputes the data, and Los Angeles County says a preliminary look at part of the list found apparent discrepancies, including people born in the U.S. and people not registered. That was a partial review, so it doesn't settle how accurate the whole list is.
Mimi
Judge Bumatay, also a Trump appointee, pressed the other direction, asking about how California handles challenges to suspected ineligible voters.
Mark
So no side got an easy hearing.
Luke
Right, though we don't know how the panel will rule, or whether it will wait for Carter. Bennett only said they'd move as fast as they can.
Il Polso
- A three-judge Ninth Circuit panel grilled both sides for nearly two hours on Sunday, with questions aimed as much at jurisdiction as at the merits.
- The Justice Department wants about 20,000 mail ballots frozen while suspected noncitizens' eligibility is reviewed, arguing that hundreds of thousands of ballots are processed every day.
- Judge Mark Bennett, a Trump appointee, asked how an injunction could be squared with the Elections Clause, saying it seemed "entirely inconsistent" with California's law.
- California calls the federal data disputed, and Los Angeles reviews have already turned up apparent errors, including U.S.-born voters on the list.
- With Judge David Carter's hearing set for Tuesday and the panel promising a ruling as fast as possible, the clock is the central pressure.
On a Sunday afternoon in late October, a federal appeals panel in San Francisco spent nearly two hours wrestling with a question that sits where election law, citizenship, and the limits of federal power meet: whether roughly 20,000 California mail ballots, sent to people the Justice Department suspects are not citizens, should be held back while their eligibility is examined. The judges, some of them appointed by a president who pressed for the request and some by his predecessor, seemed reluctant to reach the merits before a lower court had spoken, and skeptical that the Constitution's grant of election authority to state legislatures leaves room for such an order. The case is one more chapter in a long national argument about who decides who may vote, and how quickly a dispute over the rolls can be made to answer to a deadline that the ballot box itself does not wait for.
For nearly two hours on Sunday, a three-judge panel of the Ninth Circuit heard the Trump administration and the state of California argue over whether a federal court should order California to set aside roughly 20,000 mail-in ballots. The Justice Department says those ballots went to people it suspects are noncitizens, and it wants them held back while their eligibility is reviewed rather than counted alongside everyone else's. It asked the court to act at once, warning that hundreds of thousands of ballots could be processed each day while the question remains open.
The judges pressed hard on substance. Judge Mark Bennett, a Trump appointee, asked how the requested injunction could fit with the Elections Clause, which leaves the times, places and manner of congressional elections to state legislatures, subject to Congress. Judge Gabriel Sanchez, a Biden appointee, asked why the appeals court should weigh in at all before the district court had ruled. That hearing before Judge David Carter is set for Tuesday, after the Justice Department went to the appeals court when Carter missed a deadline it had requested.
California disputes the federal data and says its safeguards against noncitizen voting are strong. Los Angeles County officials reported that a preliminary review found apparent errors, including people born in the United States. The state argues that federal power over election administration is limited unless Congress legislates, and that the government's theory would "turn the Constitution on its head." More than 3 million Californians have already voted, including over 500,000 in Los Angeles County. Bennett said the panel would rule as quickly as it could, and Carter's hearing is the next step.
For nearly two hours on Sunday, a three-judge panel of the U.S. Court of Appeals for the Ninth Circuit heard lawyers for the Trump administration and the state of California argue over whether a federal court should order California to set aside roughly 20,000 mail-in ballots. The Justice Department says the ballots were sent to people it suspects are noncitizens. Fox News' Matt Finn reported on the hearing, and Reuters contributed.
The Justice Department wants California election officials to hold back ballots tied to individuals on its list while their eligibility is reviewed, rather than letting them be processed with everyone else's votes. It asked the panel to rule immediately. Its argument is that hundreds of thousands of California ballots could be tabulated each day while the dispute goes unresolved, and that every day without a ruling risks more of the contested ballots being processed before the citizenship question is settled.
The judges pressed on the substance. Circuit Judge Mark Bennett, a Trump appointee, asked whether the requested injunction could be squared with the Elections Clause of the Constitution, which gives state legislatures authority over the times, places and manner of congressional elections, subject to regulation by Congress. He told Justice Department attorney Matthew Donnelly that the administration seemed to want an injunction "entirely inconsistent" with the law the California legislature adopted under that clause, and asked, "How can we do that?"
The panel also questioned whether the Ninth Circuit should be involved at all. Judge Gabriel Sanchez, a Biden appointee, asked why the appeals court should weigh in when the district court has not yet ruled on the request. A hearing before U.S. District Judge David Carter is scheduled for Tuesday. The Justice Department went to the appeals court after Carter did not rule by a deadline the department had earlier requested. California argues the Ninth Circuit should wait for the lower court.
Judge Patrick Bumatay, another Trump appointee, spent more of his time on the government's concerns about noncitizen voting. He questioned how California handles challenges involving suspected ineligible voters.
The Justice Department filed the underlying suit on Oct. 15, about two weeks after California began mailing ballots. Before the arguments, the administration accused the state of a history of "mishandling voter rolls." California disputes the federal data and says it has strong safeguards against noncitizen voting. Los Angeles County officials said a preliminary review of part of the federal list found apparent discrepancies, including people who were born in the United States and people who were not registered to vote.
In a filing over the weekend, California said the federal theory would "turn the Constitution on its head." The state also argued that, when it comes to election administration, the federal government has no power to interfere with the states unless Congress passes a law governing the time, place or manner of elections.
The stakes are measured in ballots already cast. According to figures cited in the litigation, more than 3 million people have voted statewide, including more than 500,000 in Los Angeles County.
Bennett said the panel would try to rule as quickly as possible. Judge Carter's hearing on Tuesday is the next scheduled event.
Citazioni salienti
It seems to me that you want us to issue an injunction that is entirely inconsistent with the law that the California legislature has adopted pursuant to the Elections Clause. How can we do that?— Judge Mark Bennett, to DOJ attorney Matthew Donnelly
California argued the federal government's theory would "turn the Constitution on its head."— California, in a weekend filing
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