A divided federal appeals court on Friday refused to order California to hold back the mail ballots of about 20,000 people the federal government flagged as likely noncitizens ahead of the Nov. 3 election.
It was the Justice Department’s second loss before the 9th U.S. Circuit Court of Appeals in a week, according to the order filed Oct. 30. The department wanted California and Los Angeles County to separate those ballots and check each voter’s citizenship before any were counted.
Judges Mark J. Bennett and Gabriel P. Sanchez sided with the state. Judge Patrick J. Bumatay dissented.
A list built from the voter roll
Federal immigration agencies obtained California’s voter roll over the summer, the order states. U.S. Citizenship and Immigration Services and Homeland Security Investigations used it to compile what they called “high-confidence” noncitizens.
The government sent that list to state and county officials Oct. 12. They declined to hold the ballots, citing doubts about its accuracy.
On Oct. 15, the Justice Department filed suit. Its targets were the state, Secretary of State Shirley Weber and Dean Logan, Los Angeles County’s registrar-recorder. Its bid for a temporary restraining order failed in district court on Oct. 28.
Majority cites state authority
Under the federal statute at issue, a noncitizen who votes for a federal office can face up to a year behind bars. The majority found nothing in that statute that displaces California’s own rules for challenging ballots.
The Constitution’s Elections Clause leaves the running of elections to the states unless Congress steps in, the judges wrote. If the government wants different procedures for mail ballots, they said, it should ask Congress.
The panel also noted that federal law bars the systematic removal of voters from the rolls within 90 days of a general election. The government’s challenge covered an entire batch of 20,000 ballots.
The trial court found the government offered no error rates and no check against a reliable benchmark for its list. The judge also said it remained unknown how LexisNexis matched names to Social Security numbers missing from the public voter file.
A Los Angeles County technology official stated in a declaration that the required system changes could not be finished safely before Election Day. The official warned they could cause the county’s central election system to fail and threaten the Dec. 11 certification deadline.
Dissent calls request modest
Bumatay argued that keeping the suspect ballots apart would not cancel any vote and would allow time to verify eligibility.
During oral argument, he wrote, Los Angeles County gave no evidence that it independently checks voters’ citizenship. The county said nearly 40% of a sample from the list was born in the United States. When the federal government ran the same sample, it found none were, according to the dissent.
The case is United States v. California, No. 26-7231.
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