9th Circuit Rejects DOJ Bid to Sequester 20,000 California Mail Ballots Linked to Suspected Noncitizens

A three-judge panel of the 9th U.S. Circuit Court of Appeals ruled 2-1 on Monday that it lacked jurisdiction over the Justice Department’s emergency appeal seeking to require California election officials to set aside mail ballots associated with roughly 20,000 registered voters the federal government has identified as likely noncitizens. The decision returns the case to U.S. District Judge David O. Carter in the Central District of California, where a hearing on the department’s request for a temporary restraining order is scheduled for Tuesday afternoon.

The panel—Judges Mark Bennett and Patrick Bumatay, both appointed by President Trump, and Judge Gabriel Sanchez, appointed by President Biden—issued its order after an unusual Sunday hearing conducted by Zoom. Bennett and Sanchez formed the majority. They concluded that the Justice Department had not given the district court adequate opportunity to consider its request before treating the lack of an immediate ruling as a “constructive denial” and appealing. The majority wrote that “the United States’s claimed emergency, at least in part, is a self-constructed one,” citing the department’s timing in filing suit on October 15, less than three weeks before Election Day, and in seeking emergency relief only after California had begun processing returned ballots. Bumatay dissented.

The underlying lawsuit stems from a list of more than 20,000 California voters that federal investigators compiled by cross-checking state registration records against immigration data held by U.S. Citizenship and Immigration Services and Homeland Security Investigations. Acting Deputy Attorney General Trent McCotter sent letters to California Secretary of State Shirley Weber and Los Angeles County Registrar-Recorder/County Clerk Dean Logan giving them 48 hours to review the names and set aside any returned ballots from those individuals until citizenship could be confirmed. When state officials did not comply, the Justice Department sued on October 15, asking the court to order California to sequester the ballots rather than process them with the rest of the vote. First Assistant U.S. Attorney Bill Essayli has described the 20,000 figure as a floor, noting that a July letter from Homeland Security Secretary Markwayne Mullin had flagged nearly 200,000 possible noncitizens on the state’s rolls and that review of those records continues.

Federal law under 18 U.S.C. § 611 makes it a crime for noncitizens to vote in federal elections. The department has argued that California’s automatic mailing of ballots to every registered voter, combined with its refusal to segregate those linked to the federal list, risks the counting of unlawful ballots and the dilution of lawful votes. California officials have disputed the reliability of the list, stated that they lack independent mechanisms to verify citizenship beyond the attestation required at registration, and pointed to existing state procedures for challenging ballots. Los Angeles County has reported processing hundreds of thousands of mail ballots already. State Attorney General Rob Bonta called the appellate ruling an important step in protecting the state’s authority to administer its elections.

During the Sunday appellate hearing, Judge Bennett questioned whether an injunction directing California to alter its ballot-processing procedures would be consistent with the Elections Clause of the Constitution, which assigns primary authority over the time, place, and manner of federal elections to the states, subject to congressional regulation. Department attorneys responded that both federal criminal law and California law prohibit noncitizen voting and that the state has not taken steps to enforce the restriction against the flagged voters. The majority also noted the practical difficulties of intervening after ballots have begun to be separated from identifying envelopes and processed.

Judge Carter, a Clinton appointee who previously dismissed a separate Justice Department request for California’s full unredacted voter registration list, set the temporary restraining order hearing for 1 p.m. Pacific time on October 27 and has indicated he intends to rule promptly afterward. The department could still seek further review at the U.S. Supreme Court if it does not obtain relief in the district court. With mail ballots already in circulation and Election Day one week away, the dispute centers on whether federal courts can order segregation of a specific set of ballots based on the government’s preliminary matching of voter records against immigration databases while state election processes are underway.