A federal appeals court on Friday turned down the Trump administration's latest attempt to make California election officials segregate ballots from more than 20,000 people the government alleges could be noncitizens.
In a 2-1 decision, a panel of the 9th U.S. Circuit Court of Appeals concluded that the United States "has not made the required showing that such extraordinary relief, during an ongoing election, is clearly required by law."
The majority wrote that it saw no clear error in the district court's finding that "there is no feasible way to identify and segregate the ballots of specific individuals without potentially catastrophic effects on the entire system."
Judge Patrick Bumatay, a Trump appointee, dissented, calling the government's proposal a "modest" remedy. "The federal government and the States can work together. California decided long ago that aliens can't vote in its elections. Today, the federal government merely seeks to safeguard that decision. We should have let them try," he wrote. The majority consisted of Mark Bennet, also a Trump nominee, and Gabriel Sanchez, a Biden nominee.
The ruling marked the second time in a week that the same panel had refused an administration request to step into the case. The administration had sued earlier this month, demanding that California set aside over 20,000 ballots it contended may have been sent by noncitizens.
On Wednesday, U.S. District Judge David Carter ruled that the request "violates longstanding constitutional principles mandating that states have control over their elections." He warned that granting the last-minute relief would allow "either party" to "create chaos for their own political purposes to disrupt the election process."
Carter also raised doubts about how the administration assembled its list of names, pointing out that the Department of Homeland Security had asserted in July that the number of registered noncitizen voters in California was closer to 200,000. "Given the vagueness of Plaintiff's descriptions of its procedures and the unreliability of its similar claims in other states, the Court cannot conclude that Plaintiff's process is credible," he wrote.
The judge cited the administration's claims in Nevada as an example. Officials there initially alleged 15,903 registered voters were noncitizens, then cut the figure to 6,218 and eventually to 185 after a manual review, and Nevada officials later confirmed all 185 were citizens.
In its earlier decision, the appeals court panel also rejected the government's argument that emergency intervention was necessary, calling the urgency "at least in part, a self-constructed one" because officials had waited until too close to the election to act.
The Justice Department did not immediately respond to a request for comment on the ruling or on whether it intends to seek emergency relief from the Supreme Court.
Kristen Clarke, general counsel of the NAACP, which helped defend the case, said in a statement: "The Department of Justice sought to throw out the voices of more than 20,000 Californians without credible evidence and outside the established safeguards that protect voters' rights." She added, "Today's decision sends a clear message: our elections must be governed by facts, law, and constitutional principles, not political interference or voter suppression."
