Ninth Circuit dismisses federal bid to hold California mail ballots

The U.S. Court of Appeals for the Ninth Circuit dismissed the federal government’s effort to force California election officials to set aside mail ballots on Monday. The panel issued a 2-1 decision stating that the court lacked jurisdiction over the appeal. Judges Mark Bennett and Gabriel Sanchez granted the motion filed by Dean Logan, the top elections official in Los Angeles County. Judge Patrick Bumatay dissented.

The majority opinion criticized the Department of Justice for failing to allow a federal district court adequate time to consider its request for temporary relief. The judges noted that the department filed its lawsuit less than three weeks before the November 3 midterm elections. They observed that the administration sought a temporary restraining order only last week while California was already processing ballots. The court described the emergency as self-constructed in part because of the government’s own delays in filing suit and communicating its desired relief.

Bennett, appointed by President Trump, wrote a concurring opinion stating he would have rejected the bid on the merits even if the court had reached that stage. Sanchez, tapped by former President Joe Biden, also authored a concurring statement. Bumatay, a Trump appointee, argued that the federal government has a sovereign interest in safeguarding federal elections. He wrote that the answer to whether the government can stop potential attacks on election integrity must be yes under both federal law and the Constitution.

The dispute began after Acting Deputy Attorney General Trent McCotter sent a letter to California Secretary of State Shirley Weber and Logan. The letter demanded a 48-hour review of a list containing more than 20,000 registered voters the administration believes are likely noncitizens. Los Angeles County responded on October 15 that the list contained addresses from across the state and lacked details on how the list was compiled or how to confirm citizenship status. On the same day, the Justice Department sued California, Weber, and Logan, claiming state officials failed to collaborate with the federal government to identify noncitizens.

District Judge David O. Carter scheduled a hearing for Tuesday afternoon on the temporary restraining order request. The next day, the Justice Department appealed to the Ninth Circuit, arguing that Carter’s silence amounted to a constructive denial. A three-judge panel held a rare Sunday oral argument session where at least two judges appeared skeptical of the government’s request. The lawsuit was filed less than three weeks before voters decide which party controls the House and Senate. Court filings indicate Los Angeles County has already processed an estimated 550,000 mail ballots since early October.

The Department of Homeland Security declined to provide California officials with an explanation of how it identified the alleged ineligible voters. In its lawsuit, the Justice Department stated it compares voter rolls with internal data and uses third-party software to identify matches. The administration also cited internal records and data from the Social Security Administration. California officials argued the lawsuit does not allege that the suspected noncitizens will vote unlawfully. Lawyers for Logan contended that the relief sought exceeds the executive branch’s constitutional authority, as the Elections Clause grants states power over the times, places, and manners of congressional elections.

Los Angeles County lawyers stated they analyzed a sample of 200 records from the 7,035 county addresses on the list. They found that 112 corresponded to canceled or inactive voter registrations. Most of the people in the sample had never voted, and more than one-quarter listed a birthplace in the United States. Federal prosecutors sent similar lists to at least 18 other California county registrars on Friday, demanding they set aside ballots cast by suspected noncitizens. The panel gave the government until 7 p.m. local time Monday to ask the full Ninth Circuit to reconsider the appeal.