9th Circuit rejects Justice Department bid to make California set aside ballots tied to alleged noncitizens

What happened

A federal appeals court on Friday turned down the Justice Department's request that California set aside disputed ballots received in the midterm election, according to an Associated Press report published by PBS NewsHour. The administration has alleged that California sent ballots to some 20,000 people who may not be U.S. citizens. It wants those ballots held and left uncounted until citizenship can be verified.

California officials say the list is highly unreliable and most likely includes many people who are U.S. citizens. A district court judge denied the same request on Wednesday and warned that the Justice Department's demands could disenfranchise citizens. AP described Friday's ruling as the latest setback for the Trump administration's efforts to assert control over state-run elections.

How the 9th Circuit panel ruled

The majority

The 9th Circuit Court of Appeals panel ruled 2-1. The majority was Judge Mark J. Bennett, appointed by President Donald Trump, and Judge Gabriel P. Sanchez, appointed by former President Joe Biden. Agreeing with the district court, they wrote that "there is no feasible way to identify and segregate the ballots of specific individuals without potentially catastrophic effects on the entire system."

AP reported that millions of people have already voted in California in the election that concludes Tuesday, and hundreds of thousands of ballots have been processed. Elections officials have said processed votes cannot be matched back to the voters who submitted them.

The dissent

Judge Patrick J. Bumatay, also a Trump appointee, dissented. He argued that California's unwillingness to separate the ballots encourages the "violation of federal law." He wrote: "California says it can do nothing to prevent illegal voting."

The Justice Department's position

A Justice Department spokesperson did not immediately respond to a request for comment on the ruling, AP reported. In a statement about its efforts on noncitizen voting, the department said: "Federal law prohibits noncitizens from voting. Enforcing that law is not an agenda item. It is the Department's job." Department lawyers have previously said they will appeal to the U.S. Supreme Court.

Department spokesperson Kiersten V. Pels wrote in an email that "Every ballot cast by an ineligible voter cancels out the vote of an American citizen."

Other court actions on Friday

Advocates win access to the list

Earlier Friday, another federal judge ordered the administration to share the list of names with lawyers for the Coalition for Humane Immigrant Rights and the UCLA Voting Rights Project. According to AP, it will be the first time a nongovernment organization can evaluate the list of some 20,000 names. The federal government appealed that decision Friday evening.

The two groups sued the Homeland Security Department in early October to stop it from using federal immigration data to challenge state voter rolls. Their lawsuit argued the data-matching methods risk disenfranchising or deterring citizens, and could disproportionately target naturalized citizens. AP noted that Xavier Becerra, the Democratic candidate for California governor, is an adviser to the UCLA Voting Rights Project.

Investigations paused in nine states

In a separate 9th Circuit decision Friday, a panel ruled that federal investigations into alleged illegal voting by noncitizens in past elections will stay on hold in nine states until after Election Day. The judges, all nominated by Democratic presidents, found the investigations led some citizens to avoid election-related activities out of fear of being wrongly targeted. The investigations can resume after Tuesday.

Pressure on election officials

A coalition of unions, including the A.F.L.-C.I.O. and the American Federation of State, County and Municipal Employees, asked a federal judge to temporarily block the Justice Department from demanding that local officials stop counting ballots. They also want the department to drop threats to criminally prosecute officials who do not comply. Bill Essayli, the top federal prosecutor in Los Angeles, has warned that "any election official who knowingly processes the ballot of a noncitizen is opening themselves to legal jeopardy."

AP obtained subpoenas issued to Los Angeles County election officials seeking documents tied to federal letters sent in July and October. At least three county election officials have been asked to appear before a grand jury Wednesday. AP reported it is unclear whether the department intends to bring criminal charges against anyone.

What to watch next

• Whether the Justice Department follows through on its stated plan to appeal to the U.S. Supreme Court.
• The federal government's appeal of the order to share the list of some 20,000 names with advocacy groups.
• The scheduled grand jury appearance of at least three Los Angeles County election officials on Wednesday.
• The unions' pending request to block demands that local officials stop counting ballots.