Trump DOJ’s bid to stop California ballot counting returns to federal judge after 9th Circuit dismissal

A federal judge will hear arguments Tuesday over the Trump administration’s extraordinary request to stop California from counting thousands of mail ballots, one day after a federal appeals court rejected the Department of Justice’s attempt to bypass him and obtain emergency relief directly.

The hearing before U.S. District Judge David O. Carter is the latest turn in a rapidly moving fight over more than 20,000 California voters whom federal officials claim may be noncitizens.

DOJ wants Carter to order California election officials to identify ballots associated with people on the federal government’s list and set them aside until their citizenship can be confirmed.

The department tried last week to get the 9th U.S. Circuit Court of Appeals to impose that relief before Carter had even ruled.

On Monday, the appeals court dismissed DOJ’s appeal for lack of jurisdiction, concluding that the department failed to give Carter enough time to consider its temporary restraining order before declaring his failure to immediately act a “constructive denial.”

The ruling puts the fight squarely back before Carter, who has said he will hear arguments Tuesday and rule promptly afterward.

How the fight got here

The case stems from a dubious federal investigation that identified more than 20,000 registered California voters whom DOJ and the Department of Homeland Security say are likely noncitizens and were sent mail ballots.

On Oct. 13, DOJ gave California and Los Angeles County the list and demanded that officials review it within 48 hours, verify voters’ citizenship and set aside ballots belonging to anyone whose citizenship could not be confirmed.

California officials refused, questioning the reliability of the federal data and arguing that election officials cannot stop processing ballots from registered voters based on unverified federal allegations.

DOJ sued California and Los Angeles County on Oct. 15.

The government’s legal theory relies primarily on 18 U.S.C. § 611, a federal statute that generally makes it a crime for noncitizens to vote in federal elections. DOJ argues that California’s continued processing of ballots from people on its list obstructs the federal government’s ability to enforce that prohibition and is therefore preempted by federal law.

California and Los Angeles County say DOJ is trying to transform a criminal statute aimed at individual voters into authority for the executive branch to dictate how a state conducts an election — authority Congress never gave it.

The dispute intensified last week after Los Angeles County disclosed that it had already processed hundreds of thousands of mail ballots. Under California’s ballot secrecy protections, once a ballot is separated from its identifying envelope, officials can no longer determine which voter cast it.

DOJ initially asked Carter to grant relief by Election Day, Nov. 3. But after learning how many ballots Los Angeles County had already processed, the department abruptly demanded that Carter rule by noon the following day.

When he did not, DOJ appealed, arguing that Carter’s failure to meet its new deadline amounted to a constructive denial of its request.

The 9th Circuit sends DOJ back to Carter

A three-judge 9th Circuit panel held a rare Sunday hearing on DOJ’s request.

The court dismissed the appeal Monday, ruling 2-1 that DOJ had not given Carter an adequate opportunity to act.

The majority emphasized that DOJ twice told the district court it wanted relief by Nov. 3 and that Carter responded by scheduling Tuesday’s hearing — a full week before that deadline. Only after Carter set the hearing did DOJ demand a ruling within roughly 15 hours, most of them overnight.

The court called DOJ’s claimed emergency “at least in part” a product of the department’s own decisions.

“The United States’s claimed emergency, at least in part, is a self-constructed one,” the court wrote.

The panel’s formal ruling did not decide whether DOJ’s underlying legal theory is valid. But the two judges in the majority — Judges Mark Bennett and Gabriel Sanchez — each wrote separately to say they would have denied DOJ’s emergency request even if the court had jurisdiction to consider it.

Bennett questioned whether § 611 gives DOJ anything close to the authority it claims.

Both federal and California law already prohibit noncitizen voting, Bennett wrote. The real dispute is over the procedures used to enforce that prohibition — an area in which the Constitution gives states broad authority unless Congress has clearly displaced their rules.

Bennett concluded that nothing in § 611 tells states how to process ballots or authorizes DOJ to intervene in state election administration. If the federal government wants states to impose additional citizenship checks on mail ballots, he wrote, “the appropriate audience for that suggestion … is Congress, not the courts.”

Sanchez focused on a different problem: the Supreme Court’s Purcell principle, which generally cautions federal courts against changing election rules close to an election.

DOJ is asking California to create a ballot-segregation and citizenship-verification process that the state has never used before, Sanchez wrote. Imposing that process with voting already underway could disrupt election administration and create what he called “electoral chaos.”

Judge Patrick Bumatay dissented. He would have allowed the appeal and granted DOJ’s request, concluding that § 611 is an exercise of Congress’ constitutional authority over federal elections and that California’s continued processing of the disputed ballots frustrates the federal prohibition on noncitizen voting.

What Carter will decide Tuesday

With DOJ’s appeal dismissed, the jurisdictional dispute that briefly threatened to derail Tuesday’s hearing is gone.

Carter can now consider DOJ’s temporary restraining order directly.

The government will have to persuade him not only that its list is reliable enough to justify singling out thousands of registered voters, but that § 611 gives a federal court authority to compel California to alter its ballot-processing procedures while voting is underway.

California and Los Angeles County are expected to argue that DOJ has failed on both fronts.

They have challenged the provenance and methodology behind the federal list and warned that implementing DOJ’s requested segregation system in the middle of an election could require significant changes to election infrastructure.

They also argue that DOJ’s theory stretches § 611 far beyond what Congress enacted: from a criminal prohibition on individual noncitizen voting into a source of federal power over state election administration.

Tuesday’s hearing comes exactly one week before Election Day, as California counties are already processing large numbers of mail ballots.

And while Monday’s 9th Circuit ruling did not resolve DOJ’s lawsuit, it leaves Carter with a stark legal question: whether a federal criminal prohibition on noncitizen voting gives the executive branch power to force a state to change how it handles ballots while an election is already underway.