At the 9th Circuit Court of Appeals, a three-judge panel on Friday rejected the Trump administration’s demand that California separate nearly 20,000 mail-in ballots from the count. The 2-1 decision came as election offices across the state had already received hundreds of thousands of ballots and with less than four days until the November 3 midterm elections.
Judge Mark Bennett, a Trump appointee who wrote the majority opinion, was joined by Judge Gabriel Sanchez, a Joe Biden appointee. Judge Patrick Bumatay, also appointed by Trump, dissented.
The administration had asked the court to set aside nearly 20,000 mail-in ballots in California. It said nearly 20,000 people it described as “likely non-citizens” had received ballots for the November 3 midterm elections.
The majority said the requested action would violate the US Constitution and could disenfranchise eligible voters. “The consequence of the United States's request is not merely ballot segregation, but ultimately both the cancellation of the ballot and the removal of voters from the voting rolls,” the judges wrote.
The dispute began on October 12, when the administration sent California a list of approximately 20,000 people it said were likely noncitizens. California officials, including Governor Gavin Newsom, declined to set aside their ballots without proof that the people listed were foreign nationals.
California uses a universal mail-in voting programme that sends a ballot to every active voter. Its lawyers conceded that an individual ballot cannot be separated after processing. The administration nevertheless sought to segregate and exclude nearly 20,000 particular ballots.
Trump’s administration sued California on October 15 to stop the ballots being counted. A district court judge denied the request on Wednesday. The administration appealed to the 9th Circuit, which initially rejected its case on Monday on jurisdictional grounds without deciding the merits.
After the administration appealed again, the panel ruled on Friday. The majority said: “We decline the United States's invitation to contravene the Elections Clause by undermining the Constitution's plain text.”
Newsom called the lawsuit an attempt to suppress voters. “This is a sad, desperate attempt by Trump to use his politicized Justice Department to try to suppress California voters,” he said.
Bumatay described the administration’s petition as a “reasonable request” and said California had a “lax system” for ensuring that voters are citizens.
Hours after the appeals court ruling, US District Judge Trina L. Thompson of the Northern District of California issued an emergency order barring the Justice Department from threatening or coercing election workers and from demanding that local officials segregate or decline to count ballots. A third federal judge also ordered the administration on Friday to provide the disputed list to lawyers for the Coalition for Humane Immigrant Rights and the UCLA Voting Rights Project.
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