9th Circuit panel rejects DOJ bid to have California set aside ballots tied to suspected noncitizens

A divided panel of the 9th U.S. Circuit Court of Appeals on Oct. 30 rejected the Justice Department's emergency request to have California set aside mail ballots tied to more than 20,000 voters the administration suspects are noncitizens, Axios reported. The 2-1 ruling leaves California's mail-ballot procedures in place.

The Hill reported that the majority was Judges Gabriel Sanchez and Mark Bennett, with Judge Patrick Bumatay dissenting. Axios reported that the majority cited the district court's finding that the DOJ's process for identifying suspected noncitizens was not credible, and a risk of disenfranchising eligible voters. The Hill said the majority did not dispute that district court finding. The Hill also reported that the majority wrote there is no feasible way to identify and segregate specific individuals' ballots without potentially catastrophic effects on the whole system.

CNN reported that the 9th Circuit said the administration does not have the legal right to second-guess how California verifies voters' citizenship. According to CNN, the majority pointed to the Constitution's Elections Clause, which gives states the lead role in running elections, and to a Supreme Court doctrine against court rulings that cause chaos when voting is near or underway. The Hill reported that California's lawyers have conceded a ballot cannot be separated once it is processed.

Axios reported that Bumatay argued counting votes from noncitizens dilutes citizens' votes and that the federal government's proposed remedy was modest. The Hill reported that he warned California has a "lax system" for ensuring voters are citizens and that ballots cannot be segregated later.

The ruling follows an earlier one. CBS News reported that on Oct. 26 a 2-1 panel dismissed the DOJ's appeal for lack of jurisdiction, because the DOJ had not given the district court an adequate opportunity to act. In that Oct. 26 ruling, CBS said, the majority described the claimed emergency as in part "self-constructed", citing the DOJ's timing in filing suit.

The two sides describe the list differently. CBS reported that the DOJ says it covers voters it believes are likely noncitizens, while California officials say the suit does not allege those people will vote unlawfully.

What we don't know yet

• How many of the more than 20,000 people on the list actually returned ballots. The sources reviewed do not say.
• Whether the DOJ will seek review by the full 9th Circuit or by the Supreme Court. Axios and CNN describe a Supreme Court appeal as possible, and The Hill points to the possibility of full-court review.
• The exact wording of the opinion. This briefing relies on news reports, not the opinion text.