A federal appeals court has declined to force California to set aside roughly 20,000 mail ballots that the Trump administration says belong to noncitizen voters, leaving the dispute unresolved just days before the November 3 election.
In a 2-1 ruling issued Monday, the Ninth Circuit Court of Appeals denied an emergency request from the Justice Department to pull the ballots from the count while the eligibility of those voters is reviewed. The majority said much of the urgency behind the request stemmed from the government’s own timing. Judge Patrick Bumatay dissented, writing that the federal government has a sovereign interest in protecting the integrity of federal elections.
The dispute began October 15, when the Justice Department sued California over a list of more than 20,000 registered voters that federal agencies had flagged as likely noncitizens. Prosecutors asked the state to verify each name or keep the associated ballots separate from the rest of the count. California refused, challenging both the accuracy of the federal data and the short deadline it had been given to act.
Federal prosecutor Bill Essayli said California made a notable admission during a hearing the day before the ruling. He said the state told the court it does not independently verify the citizenship of its registered voters, and that any ballot already cast by a noncitizen would be counted unless the courts intervened. Essayli said that admission is why his office sought the emergency order, arguing that illegally cast ballots dilute the votes of eligible citizens.
How the list was built
The government has described its process for compiling the list. Investigators started with California’s voter rolls, cross-referenced them with commercial data to fill in gaps in public records, then checked names against immigration and Social Security databases to remove citizens and deceased voters. Federal investigators then reviewed the remaining names by hand.
The three-judge panel that heard arguments Sunday appeared skeptical of the government’s request. One Trump-appointed judge on the panel told the Justice Department that the order it sought would conflict with California’s own election law. The panel also questioned why the appeals court should intervene before the district court had issued a ruling of its own.
The fight over California’s voter rolls is part of a broader Justice Department effort ahead of the election. Last week, prosecutors charged 28 green card holders in California with illegally registering or voting, arresting 11 of them. The department said all 28 had appeared on the flagged list.
California pushes back
California’s Democratic attorney general has argued that the federal government’s legal theory would upend the Constitution by letting Washington dictate how a state administers its own elections. Los Angeles County officials have said a sample review of the federal list turned up people who had reported being born in the United States. A Department of Homeland Security official disputed that in a sworn statement, saying USCIS records showed none of the sampled individuals were U.S.-born.
The case has returned to the district court, where a judge heard arguments Tuesday and did not immediately issue a ruling. With Election Day on November 3 fast approaching, the fate of the roughly 20,000 ballots remains unsettled.
