Washington — The U.S. Court of Appeals for the 9th Circuit on Friday rejected the Justice Department’s request for California to set aside disputed ballots received in the midterm election.
The panel’s 2-1 ruling is the latest setback for the Trump administration’s efforts to assert control over state-run elections. Judges Mark Bennett and Gabriel Sanchez said in an unsigned decision that the Justice Department failed to meet its burden in showing that an injunction pending appeal is warranted.
“Major concerns remain that granting the United States’s requested relief might result in immense hardship to Defendants and harm the public interest by risking the disenfranchisement of eligible voters and putting the entire tabulation process in jeopardy,” they wrote.
Judge Patrick Bumatay dissented.
The administration has alleged California sent ballots to some 20,000 people who may not be U.S. citizens. It wants the state to set those ballots aside and not count them until citizenship can be verified. California officials say the list is highly unreliable and likely includes many people who are U.S. citizens.
A district court judge already forcefully denied that request and warned that the Justice Department’s demands could disenfranchise citizens.
“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 appeals court wrote, adding that the relief requested by the Trump administration is “simple only in the abstract.”
The ruling is the latest in an expansive legal battle between the federal government and the state before Election Day in the midterms Tuesday. Millions of people in California have already voted.
The Justice Department did not immediately respond to a request for comment on the ruling.
Hundreds of thousands of ballots have already been processed. Elections officials have said that processed votes are completely anonymized and can’t be matched back to the voters who submitted them.
The ruling comes during broader federal scrutiny of local elections, with the Trump administration issuing 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.
Earlier on Friday, a federal judge in Washington 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 the list so they can 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.
Prosecutors with the Trump administration have argued that there is just as much to lose from noncitizens illegally voting, arguing that to tally those votes would dilute the voice of citizens.
Democratic gubernatorial candidate Xavier Becerra is an adviser to the UCLA Voting Rights Project.
The two groups sued the Department of Homeland Security 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.
A coalition of unions on Friday also joined the growing list of groups challenging the federal government’s efforts.
The unions, including the A.F.L.-C.I.O. and the American Federation of State, County and Municipal Employees, are asking a federal judge to temporarily block the Justice Department from demanding that local officials stop counting ballots and to drop threats to criminally prosecute officials who do not comply with their demands.
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 on Nov. 4, the day after the election.
The lawsuit accuses the Justice Department of issuing threats against election officials that could interfere with their ability to process votes.
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.
