Ninth Circuit Keeps 20,000 Disputed California Ballots in the Count in 2-1 Ruling

A federal appeals court on Friday refused the Justice Department’s emergency request to force California to set aside the ballots of about 20,000 voters the department says may not be United States citizens, leaving those ballots in the count four days before the November 3 election.

The three-judge panel of the United States Court of Appeals for the Ninth Circuit denied the department’s emergency motion for an injunction pending appeal in an unsigned 2-1 order in United States v. California, according to CBS News and Associated Press reporting cited by Workers Rights News. Judge Mark J. Bennett, appointed by President Donald Trump, and Judge Gabriel P. Sanchez, appointed by former President Joe Biden, formed the majority. Judge Patrick J. Bumatay, also appointed by Trump, dissented.

The panel’s reasoning

“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 court wrote. The panel said the government had not shown that “such extraordinary relief, during an ongoing election, is clearly required by law.”

The order also cited the Supreme Court’s Purcell rule, which warns federal courts against changing election rules close to an election. “Purcell counsels that we should not intervene at this late hour,” the court wrote.

Bumatay wrote that the court should have ordered California “to stop commingling suspected illegal ballots with legitimate ones to the extent feasible,” arguing that would “not cancel any vote.”

The case so far

The case reached the appeals court after Judge David Carter refused the same request on October 28. It was the second time this week the same panel turned the department away: on October 26, it dismissed an earlier appeal for lack of jurisdiction.

The Justice Department sued California on October 15, more than a week after mail ballots were sent to all registered voters, demanding that the state set aside 20,000 ballots from people it says may be noncitizens. California Secretary of State Shirley Weber and Los Angeles County Registrar-Recorder/County Clerk Dean Logan argued they lack the mechanisms and legal authority to freeze mail ballots until voters’ citizenship can be verified.

The 20,000 figure is the department’s claim, not a finding by the court. California told the court that the list is highly unreliable and likely includes many citizens, and that about one in four voters on it were born in the United States.

California Governor Gavin Newsom praised the ruling in a statement. “Trump and his administration just lost for the third time this week in their desperate and dangerous attempts to meddle in the California election process with voting already underway and just days before Election Day,” Newsom said.

First Assistant United States Attorney Bill Essayli had pressed the case as urgent. “Every minute that goes by, American citizen votes are being diluted in the state of California,” Essayli said at a news conference last week. “It’s an emergency, and we expect the courts to treat it as such.”

The department could still ask the full Ninth Circuit or the Supreme Court to step in, but it has not said whether it will, CBS reported. The department did not immediately respond to a request for comment. The New York Post also reported that federal prosecutors pursued subpoenas of California state and local election officials on Thursday, and that the department said receiving a subpoena “doesn’t mean you are a target” of criminal prosecution.

Reporting based on coverage by the New York Post and Workers Rights News, drawing on CBS News and Associated Press reporting.