A Trump-appointed appeals judge told the Justice Department on Sunday that California appears to have the legal authority to run its own elections. CNN reports the three-judge 9th Circuit panel was deeply skeptical of DOJ's emergency bid.
The department wants California and Los Angeles County to set aside mail ballots tied to about 20,000 suspected noncitizens. In a highly unusual emergency hearing, Judge Mark Bennett said a federal criminal law barring noncitizens from voting does not mean DOJ has authority to regulate California's voting process.
“It seems to me that under the Elections Clause, they have the right to determine the manner of the elections, including sorting out noncitizens,” Bennett said, per CNN. The hearing ran over videoconference and was broadcast on YouTube.
DOJ sued California and Los Angeles County earlier this month. CNN calls Sunday's hearing the administration's sharpest effort yet to inject itself into a state's midterm elections.
The department's argument is that it should be able to change California's ballot processing right now because noncitizens could have voted. Los Angeles County has already processed more than 300,000 midterm ballots.
The list is the problem
Bennett and Judge Gabriel Sanchez, a Biden appointee, pressed DOJ attorney Matthew Donnelly on where the 20,000 figure came from. They asked why the court should rely on it for what CNN describes as extraordinary action.
“Your claims very much depend on the reliability of that list,” Sanchez said.
Donnelly's answer, per CNN, offered little clarity. He said the administration “was supplied a list that was purchased” from California. DOJ has said the information came from a purchased list of voters and was analyzed by third parties.
Donnelly also pointed to DOJ's briefs, including sworn declarations from Department of Homeland Security officials about how they learn of noncitizen voters. He said they should be enough to justify segregating the ballots. He called it an emergency because counting is underway. He said the administration is not asking to throw out votes, only to set aside ballots the federal government wants to question.
Samuel Siegal, the attorney for California and its secretary of state, said DOJ was asking the court “to short-circuit the democratic process” with the election already underway. He said it is not clear where the list came from and that the data is “wildly outdated.”
“This is coming against the backdrop of the federal government compiling similar lists, and those also demonstrate having been demonstrably unreliable,” Siegal said.
One judge leaned DOJ's way
Judge Patrick Bumatay, also a Trump appointee, appeared more sympathetic to the administration. He questioned California and Los Angeles County attorneys about how noncitizens are investigated on the voter rolls. He also asked about DOJ's court-filing suggestion that California could never learn whether noncitizens voted if the ballots are not set aside.
Siegal disagreed. He cited the number of steps people must take to attest to their citizenship.
The judges also questioned why DOJ went to the appeals court before the district court in California had held a hearing. Bennett and Sanchez both raised that point, per CNN. Donnelly said DOJ wanted a ruling ahead of the hearing scheduled for this week because more than 300,000 mail ballots had already been processed.
The pressure campaign
CNN says the California action is one of several steps the administration has taken during voting to try to support President Donald Trump's baseless claims of massive voter fraud. This past week, DOJ also sued in Alaska to block certification of the Senate election if Republican Sen. Dan Sullivan loses, because a candidate named Daniel J. Sullivan is also on the ballot.
In California, DOJ ordered election officials on Friday to identify suspected noncitizens and set aside their mail-in ballots. CNN reported that letters went to county officials with warnings of criminal liability. First Assistant US Attorney Bill Essayli told San Bernardino County officials that anyone who knowingly tabulates ballots cast by people federal agencies identify as noncitizens risks becoming “aiders and abettors to a federal crime.”
County officials described problems with the lists. Santa Cruz County received 81 names. County Clerk Tricia Webber told CNN most appear to be canceled or inactive records, and at least one name was never registered there. Napa County registrar John Tuteur told the Associated Press: “We're not changing anything we're doing. We're proceeding with the election.”
Fox News reports separately that a Trump-appointed judge, David Barlow, dismissed DOJ's suit seeking Utah voter data on Friday. Fox counts it among more than 25 voter-roll litigation defeats for the administration. DOJ says it will appeal.
The next date is Tuesday, when a district court hearing is planned. Bennett asked Donnelly whether the appeals court even needed to rule before then. Donnelly said it should rule as soon as possible, because voting is still ongoing.