DOJ can’t leapfrog lower court in bid to block 20,000 California voters, appeals court rules

A federal appeals court rejected the Department of Justice’s (DOJ) extraordinary request to bypass the district court in its effort to bar California from counting the ballots of around 20,000 people the Trump administration alleges are “likely” noncitizens.

In a 2-1 ruling, a three-judge panel of the 9th Circuit Court of Appeals found Monday that it could not hear the appeal because the lower court overseeing the department’s suit against the state and Los Angeles County hadn’t yet issued a ruling.

For now, the 9th Circuit’s ruling sends the case back to the district court, where a hearing is scheduled for Tuesday. 

However, the DOJ could further escalate its lawsuit by appealing to the U.S. Supreme Court. If it does, Justice Elena Kagan, who is assigned to oversee appeals from the 9th Circuit, will handle the appeal.

Though the panel rejected the appeal for lack of jurisdiction, Circuit Judge Mark Bennett, an appointee of President Donald Trump, said he would have also rejected the DOJ request on the merits.

“Even if I were to conclude we had jurisdiction over the appeal, and reach the merits, there are several reasons why I would deny the United States’s emergency motion for injunctive relief pending appeal,” Bennett wrote.

Among the reasons he listed, Bennett said the federal law criminalizing voting by noncitizens that the Trump administration cited in attempting to bar California from counting ballots does not preempt the state’s authority under the Elections Clause of the Constitution.

Circuit Judge Gabriel Sanchez, an appointee of former President Joe Biden, stressed that granting the DOJ’s request would overhaul the state’s election system during an active election.

“The proposed injunction would transform California’s election rules for an election that is already underway and would cause widespread confusion among voters and election officials, divert election administration resources, and ‘usher in electoral chaos,’” Sanchez wrote. 

Circuit Judge Patrick Bumatay, another Trump appointee, said in a dissenting opinion he would have granted the DOJ’s request.

“California’s actions must be preempted,” Bumatay wrote.

The DOJ’s appeal to the 9th Circuit represented an abnormal procedural maneuver.

Last week, the department demanded that U.S. District Judge David Carter rule by noon on Oct. 22 on its motion to block California from counting votes from people the federal government alleges are noncitizens. 

When Carter did not issue a ruling, the DOJ took the unusual step of appealing the absence of an order to the 9th Circuit. The department asserted that the “critical and exigent nature” of the case merited the highly unusual appeal.

The 9th Circuit’s rejection of the appeal was largely expected. At a hearing Sunday, Bennet and Sanchez both appeared deeply skeptical of both the appeal and the timing of the DOJ’s case, with each noting that the federal government only filed suit just around three weeks before the election.

In fact, Bennet, in his opinion, wrote the DOJ’s claimed emergency was, at least in part, “a self-constructed one.”

“At least part of the delay here is attributable to the United States’s own delay
in filing suit, in realizing that existing California state law governs the issuance and processing of ballots, in recognizing that California has millions of registered voters and processes ballots on a schedule aligned with that scale, and in communicating to the court its desired relief,” Bennet wrote.

Carter is set to hear arguments Tuesday on the DOJ’s motion for a court order blocking California from counting votes. Carter, a Clinton appointee, earlier this year became the first federal judge to reject the DOJ’s effort to obtain states’ unredacted voter rolls.

State and county officials have argued the Trump administration has no legal authority to demand ballots be set aside. They have also questioned the administration’s methodology for creating the list of 20,000 alleged noncitizen voters.

Los Angeles County’s registrar-recorder said in a court filing last week that an initial review of a sample of people on the federal government’s list found that around 1 in 4 said they were born in the U.S.

The panel gave the DOJ until 7 p.m. PT to appeal before the entire 9th Circuit.

This story has been updated with new information throughout.