Appeals court rejects Justice Department request for California to set aside disputed ballots

“As the district court found — and we discern no clear error — there is no feasible way to identify and segregate the ballots of specific individuals without potentially catastrophic effects on the entire system,” the 9th Circuit Court of Appeals panel wrote in its 2-1 ruling.

The majority opinion was authored by Judge Mark J. Bennett, who was appointed by President Donald Trump, and Judge Gabriel P. Sanchez, who was appointed by former President Joe Biden.

A Justice Department spokesperson did not immediately respond to a request for comment on the ruling. But in a statement about the sweeping efforts to root out noncitizen voting, it said: “Federal law prohibits noncitizens from voting. Enforcing that law is not an agenda item. It is the Department’s job.”

Millions of people have already voted in California in the midterm election that concludes Tuesday. Hundreds of thousands of ballots have already been processed. Elections officials have said that processed votes can’t be matched back to the voters who submitted them.

Elsewhere, the Trump administration issued a raft of subpoenas in Alaska in a spoiler-candidate controversy. The Justice Department has also provided a list of alleged noncitizen voters to officials in Washington state.

Lawyers for the Justice Department have previously said they will appeal to the U.S. Supreme Court.

In his dissent, Judge Patrick J. Bumatay argued that California’s unwillingness to separate the ballots encourages the “violation of federal law.”

“California says it can do nothing to prevent illegal voting,” Bumatay, who was appointed by Trump, wrote. “That undermines the federal government’s interest in promoting election integrity and preventing the dilution of lawful votes.”

Another judge bars intimidation of election workers

Later Friday, a federal judge in California barred the Justice Department from threatening or coercing election workers to stop processing ballots.

The order issued by U.S. District Judge Trina L. Thompson in the Northern District of California was in response to a suit filed earlier Friday by labor unions seeking to bar the Justice Department from intimidating election workers.

Notably, the emergency order was issued without the Department of Justice weighing in on the case.

“Election Day is around the corner,” Thompson wrote. “Ballots have already been issued. Americans have already begun voting. Workers have already begun processing ballots. Given the consequences of inaction, the Court sees no reason to delay its ruling.”

It also bars the Justice Department from demanding local election officials segregate or not count ballots that the federal government deems may have been cast by ineligible voters.

The top federal prosecutor in Los Angeles, Bill Essayli, has warned that “any election official who knowingly processes the ballot of a noncitizen is opening themselves to legal jeopardy.”

On Thursday, The Associated Press obtained subpoenas issued to election officials in Los Angeles County. The subpoenas request any documents and communications related to letters sent in July and October by federal officials to state election officials outlining the allegations about noncitizen voters. They also seek any information about efforts to prevent noncitizen votes from being counted. At least three L.A. County election officials have been asked to appear before a grand jury the day after the election.

It is unclear whether the Justice Department intends to bring criminal charges against anyone. The department does not typically subpoena people whom it regards as targets of a criminal investigation to appear before a grand jury.

Outside groups win access to the disputed list

In a third Friday ruling, another federal judge ordered the Trump administration to share the disputed list of names with lawyers for the Coalition for Humane Immigrant Rights and the UCLA Voting Rights Project. They want to examine who is on the list and assess its impact on eligible voters.

It will be the first time that a nongovernment organization will have the opportunity to evaluate the merits of the list of some 20,000 names. The federal government promptly appealed the decision on Friday evening.

The Democratic candidate for California governor, Xavier Becerra, is an adviser to the UCLA Voting Rights Project.

The two groups sued the Homeland Security Department in early October to prevent it from using federal immigration data to challenge state voter rolls. The lawsuit cited examples in other states where the federal government’s data has been proven to mistakenly include thousands of citizens. It argued that the data-matching methods risk disenfranchising or deterring citizens from voting. On top of that, plaintiffs argued, the lists could disproportionately target naturalized citizens who are legally entitled to vote.

The Justice Department argues that there is just as much to lose if the ballots aren’t separated.

“Every ballot cast by an ineligible voter cancels out the vote of an American citizen,” Kiersten V. Pels, a spokesperson for the department, wrote in an email. “The Department makes no apology for protecting those votes.”

In a separate but related 9th Circuit Court decision on Friday, a panel of judges ruled that federal investigations into illegal voting by noncitizens will remain on hold in nine states until after Election Day.

The judges, all nominated by Democratic presidents, found that the aggressive and public investigations led some citizens to decide not to engage in election-related activities out of fear of being wrongly targeted.

The judges said the investigations, which are looking into alleged illegal voting in past elections, can resume after the midterms wrap up Tuesday.

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Associated Press writer Swenson reported from New York; Mulvihill reported from Haddonfield, New Jersey.

Safiyah Riddle, Geoff Mulvihill And Ali Swenson, The Associated Press

by The Canadian Press

Appeals court rejects Justice Department request for California to set aside disputed ballots

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