A panel of federal appellate judges on Sunday, October 25, questioned the timing, constitutionality and authority of the Justice Department's demand that California election officials set aside thousands of mail ballots from people the federal government suspects may not be citizens, the Associated Press reported. The panel did not rule at the hearing.
Source: Associated Press via 28/22 News
During the rare weekend arguments, two of the three judges on the 9th U.S. Circuit Court of Appeals appeared skeptical of a lawsuit the administration filed in mid-October. The suit accuses California officials of failing to meet a 48-hour deadline to review 20,000 names the administration flagged as likely noncitizens on the state's voter rolls. The administration asked a federal judge to require the state to withhold counting those ballots until the voters' immigration status could be verified. A district judge scheduled a hearing for October 27, but the federal government appealed to the 9th Circuit seeking an expedited decision.
Justice Department attorney Matthew Donnelly told the panel that California is causing irreparable harm “by allowing noncitizens to vote in violation of their own state laws. The damage is irreversible and irrevocable.” He argued the lower court's schedule was too slow and effectively a denial of the government's request, as state officials process thousands of mail ballots every day. The administration has made identifying noncitizen voters a priority this year, even though noncitizen voting is exceptionally rare, AP noted.
Judges press the government on jurisdiction and the Elections Clause
Circuit Judge Mark Bennett, a Trump appointee, questioned whether the appellate court even has jurisdiction to hear the case before a ruling by the lower court. He said the Elections Clause of the U.S. Constitution gives state legislatures the power to set the time, place and manner of congressional elections, and that the state has the right to determine those issues — including how it sorts out any noncitizen voters — even if the executive branch is unhappy with how it does so. Judge Gabriel Sanchez, appointed by former President Joe Biden, questioned whether the federal government was violating the Tenth Amendment by effectively commandeering the state to enforce a federal law.
Source: Fox News Digital via Pagegoo
Judge Patrick Bumatay, who was also appointed by Trump, said everyone has an interest in ensuring that only eligible citizens vote and suggested an emergency order could provide clarity. “Without an injunction, you will never know” if that is happening, Bumatay said. Bennett said the panel would try to issue a ruling as quickly as possible.
California and Los Angeles County call the federal list unreliable
Attorney Seth Waxman, representing Los Angeles County Clerk Dean Logan, said the federal government's list was unreliable and that segregating the ballots would effectively disenfranchise thousands of eligible voters. Even at just three minutes per ballot, checking the expected 2.75 million mail ballots against the list would take 140,000 man-hours — about 16 years of working time, Waxman said. He cited a county review of 200 sample records from the administration's list, which an assistant registrar said included canceled or inactive registrations, people with no voting history and voters who appeared to have been born in the United States.
Attorney Sam Siegel, representing California Secretary of State Shirley Weber, said the federal government had provided no credible evidence for its suspicions. “It has no basis in law or in fact,” he told the panel. “We just dispute the premise that noncitizens are voting.” For naturalized citizens in California — including Punjabi and other immigrant voters — the case decides whether a federal suspicion list can hold up a ballot that was lawfully cast. More than 3 million Californians had already voted before Sunday's hearing, according to the Los Angeles Times reporting cited in coverage of the case.