After the Ninth Circuit dismissed the Justice Department’s emergency appeal Monday, a federal judge will consider whether California must pause ballots associated with more than 20,000 people the government believes may be noncitizens.
The three-judge panel said it could not hear the appeal before U.S. District Judge David O. Carter ruled on the request. Its decision addressed jurisdiction, not whether the ballot holds are lawful or whether anyone on the list is a noncitizen. The majority called the government’s claimed emergency “self-constructed,” at least in part.
The case reached the appeals court before Carter ruled, following an earlier hearing on whether the panel could intervene first.
The U.S. Department of Justice (DOJ) sued California, Secretary of State Shirley N. Weber and Los Angeles County Registrar-Recorder Dean C. Logan on Oct. 15. The complaint says federal officials identified more than 20,000 people they consider likely noncitizens who had been sent vote-by-mail ballots. It cites a federal law barring noncitizens from voting in federal elections and asks officials to hold the ballots while checking citizenship. The DOJ says the request is intended to protect citizens’ votes from being diluted.
Los Angeles County challenged the list and the feasibility of the request. In a preliminary review of 200 records, the county found that 86 people had been mailed ballots, while 112 had none mailed because their registrations were canceled or inactive. It also said 71.2% of the sample had no voting history.
County officials said they had processed more than 331,000 mail ballots as of Oct. 20. They said that once a ballot is removed from its identifying return envelope, there is no way to match it to the voter. The county argued that a review during the election could divert staff and delay or prevent eligible voters’ ballots from being counted. It also cited the Purcell principle, which cautions against court-ordered changes to election procedures close to Election Day; the appeals court did not rule on that argument.
Carter scheduled a hearing for Tuesday, Oct. 27, and said he would rule promptly afterward. Election Day is Nov. 3.
