A 9th Circuit panel rejected the Justice Department’s request to set aside disputed California ballots, and a separate order barred the department from threatening election workers processing them.
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A federal appeals court on Friday rejected the Justice Department’s request that California set aside disputed ballots received in the midterm election after allegations that some ballots may have been cast by people who are not U.S. citizens.
In a 2-1 ruling, the 9th Circuit Court of Appeals said there is “no feasible way to identify and segregate the ballots of specific individuals without potentially catastrophic effects on the entire system,” according to the panel’s majority opinion. The decision came after a district court judge on Wednesday denied the Justice Department’s request and warned it could disenfranchise U.S. citizens.
The majority opinion was authored by Judge Mark J. Bennett, appointed by President Donald Trump, and Judge Gabriel P. Sanchez, appointed by former President Joe Biden. In dissent, Judge Patrick J. Bumatay, also appointed by Trump, argued California’s approach encourages the “violation of federal law.”
Friday’s appeals ruling was followed hours later by another order from a federal judge in California barring the Justice Department from threatening or coercing election workers involved in processing the disputed ballots. The order, issued by U.S. District Judge Trina L. Thompson in the Northern District of California, came in response to a suit filed earlier Friday by labour unions seeking to stop intimidation.
The court issued an emergency order without the Justice Department weighing in on the case, noting that ballots were already issued, voting had begun, and workers had begun processing ballots. The order also prevented the Justice Department from demanding that local election officials segregate or not count ballots the federal government deems may have been cast by ineligible voters.
In a statement Friday night, April Verrett, president of the Service Employees International Union, called the ruling “a victory for the workers who make our elections possible and the communities they serve.” Earlier, Bill Essayli, the top federal prosecutor in Los Angeles, warned that “any election official who knowingly processes the ballot of a noncitizen is opening themselves to legal jeopardy.”
A third ruling on Friday ordered the Trump administration to share the disputed list of names—described as about 20,000—with lawyers for the Coalition for Humane Immigrant Rights and the UCLA Voting Rights Project so they can examine who is on the list and assess its impact on eligible voters. The federal government promptly appealed the decision on Friday evening.
The Department has said federal law prohibits noncitizens from voting, and that enforcing that law is not an agenda item. In an email cited in the reporting, department spokesperson Kiersten V. Pels wrote: “Every ballot cast by an ineligible voter cancels out the vote of an American citizen,” adding, “The Department makes no apology for protecting those votes.”
Separate from the ballot-counting fight, the 9th Circuit also ruled on Friday that federal investigations into illegal voting by noncitizens will remain on hold in nine states until after Election Day, after finding that aggressive and public investigations had led some citizens to avoid election-related activities out of fear of being wrongly targeted.
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