Appeals court to hear DOJ’s dangerous bid to block California from counting votes

A federal appeals court agreed Saturday to the Trump administration’s request that it consider an unprecedented bid to block California from counting tens of thousands of ballots.*

Unusually, the court agreed to hear the case even though a district court has not yet ruled, and had set a hearing for Tuesday.

The 9th Circuit Court of Appeals said a three-judge panel will hear remote oral arguments on Sunday 4 p.m. EST.

The case will be heard by Judges Mark Bennett and Patrick Bumatay, both appointees of President Donald Trump, and Judge Gabriel Sanchez, an appointee of President Joe Biden. 

California indicated in a brief of its own Saturday that if the appeals court panel blocks it from counting ballots, it will seek en banc review — that is, it will ask for the full appeals court to hear the case. 

The 9th Circuit also ordered the Department of Justice (DOJ) to respond by noon EST Sunday to an emergency motion by Los Angeles County to dismiss the lawsuit.

Earlier Saturday, California and L.A. County separately urged the appeals court to reject the Trump administration’s attempt to leapfrog lower court review.

“This Court should not go down that path,” attorneys for the state wrote. “The basis for plaintiff’s request is as unprecedented as it is meritless.”

California said the DOJ’s dangerous attempt to segregate live ballots “makes no sense, factually or legally” and seeks to “turn the Constitution on its head.”

The government also conveniently “glosses over its own slipshod, unreliable process” for flagging potential noncitizen voters, California argued.

California officials said a ruling in favor of the Trump administration “risks sowing confusion and disorder in the midst of an ongoing election” and would change the course of future elections.

The DOJ sued California and L.A. County last week to stop election officials from counting ballots from more than 20,000 people federal agencies have flagged as “likely noncitizens” until their citizenship can be verified. The department accused election officials of knowingly facilitating noncitizen voting. It has repeatedly threatened to prosecute election officials if they don’t comply with DOJ’s demands. 

The DOJ appealed to the 9th Circuit despite the fact that U.S. District Judge David O. Carter has yet to rule in the case. Carter, a Clinton appointee who took over the case from a Trump appointee, set a hearing for Tuesday, Oct. 27.

In its own brief, Los Angeles County, which checked a sample of individuals on the DOJ’s list and found 1 in 4 were born in the U.S., said the DOJ provided “no information on how the list was compiled” and “failed to explain how the County could verify the listed individuals’ citizenship status.” 

Trying to do so, the county said, would interfere with their ability to administer the midterm election.

“The consequences of granting the injunction would not end with this election, moreover,” L.A. County warned in its opposition brief. “An order holding ballots on the basis of unreliable voter-roll maintenance lists would establish that any federal agency, armed with a list, may halt the count in any county in the nation. No court has endorsed that proposition, and Congress has foreclosed it. The public interest does not favor making Los Angeles County the first test case.”

*The Elias Law Group (ELG) represents the proposed intervenors in this case. ELG Firm Chair Marc Elias is the founder of Democracy Docket.