9th Circuit Questions DOJ Ballot Demand10/26 06:30

   

   (AP) -- A panel of federal appellate judges on Sunday questioned the timing, 
constitutionality and authority of the Justice Department's demand that 
California election officials set aside thousands of mail ballots from people 
the federal government suspects may not be citizens.

   During rare weekend arguments, two of the three judges on the 9th U.S. 
Circuit Court of Appeals appeared skeptical of a lawsuit brought by President 
Donald Trump's administration in mid-October. The lawsuit accuses California 
officials of failing to meet a 48-hour deadline to review 20,000 names the 
administration flagged as likely noncitizens on the state's voter rolls.

   The administration asked a federal judge to require the state to withhold 
counting those ballots until the voters' immigration status could be verified. 
The district judge scheduled a hearing for Oct. 27, days after the case was 
assigned, but the federal government appealed to the 9th Circuit Court of 
Appeals, seeking an expedited decision.

   Justice Department attorney Matthew Donnelly told the panel that California 
is causing irreparable harm "by allowing noncitizens to vote in violation of 
their own state laws. The damage is irreversible and irrevocable."

   The Trump administration has made efforts to identify noncitizen voters a 
priority this year, even though noncitizen voting is exceptionally rare.

   Circuit Judge Mark Bennett, a Trump appointee, questioned whether the 
appellate court even has jurisdiction to hear the case even before a ruling by 
the lower court.

   Donnelly argued that the schedule set by the lower court judge was too slow 
and effectively a denial of the government's request, as state elections 
officials process thousands of mail ballots every day.

   Judge Gabriel Sanchez, appointed by former President Joe Biden, questioned 
whether the federal government was violating the Tenth Amendment, essentially 
commandeering the state to enforce a federal law that makes it a misdemeanor 
for a noncitizen to vote.

   The federal government is simply asking California to enforce their own law, 
which also bans noncitizens from voting, Donnelly said. He argued the state's 
refusal to comply with the federal request to set aside the ballots for review 
was "frustrating the purpose" of the federal law against noncitizen voting.

   The Elections Clause of the U.S. Constitution gives state legislatures the 
power to set the time, place and manner of congressional elections, Bennett 
said. The executive branch may be "unhappy with what they're doing, and doesn't 
like the manner," Bennett said, but under the Election Clause the state has the 
right to determine those issues -- including how it sorts out any noncitizen 
voters.

   Attorney Seth Waxman, representing Los Angeles County Clerk Dean Logan, said 
the federal government's list was unreliable and that segregating the ballots 
for a review process would effectively disenfranchise thousands of eligible 
voters.

   Even if election staffers spent just three minutes checking each of the 
expected 2.75 million mail ballots against the government's list, the process 
would take 140,000 man-hours, Waxman said -- or about 16 years of working time.

   Waxman cited a review of 200 records from the Trump administration's list 
conducted by Los Angeles County staffers. Assistant Registrar-Recorder Monica 
Flores said in a court filing that the sample included canceled or inactive 
registrations, individuals with no voting history and voters who appeared to 
have been born in the United States, which the filing notes "is strong evidence 
of citizenship."

   If the administration disagrees with how California runs its elections, it 
can ask Congress to change that process, said attorney Sam Siegel, representing 
California Secretary of State Shirley Weber.

   The federal government has provided no credible evidence to support its 
suspicions, said Siegal.

   "It has no basis in law or in fact," he told the panel. "We just dispute the 
premise that noncitizens are voting."

   But Judge Patrick Bumatay, who was appointed by Trump, said everyone has an 
interest in ensuring that only eligible citizens vote. He suggested that 
granting the administration's request for an emergency order could provide 
clarity.

   "Without an injunction, you will never know" if that is happening, Bumatay 
told Seigel.

   Bennett said the panel would try to issue a ruling as quickly as possible.