Follow-Up: Ninth Circuit Again Rejects Justice Department Emergency Bid 2-1: More Than 20,000 California Mail Ballots to Be Counted as Usual

SAN FRANCISCO, San Francisco County, California — The U.S. Court of Appeals for the Ninth Circuit on October 30 again rejected, by a 2-1 vote, the U.S. Department of Justice (DOJ) emergency request to temporarily block California from counting mail ballots from more than 20,000 registered voters. The Justice Department alleges the voters on its list are likely noncitizens; the ruling means California counties will continue to process and count those ballots as usual, four days before the November 3 midterm elections.

Judges Mark Bennett and Gabriel Sanchez wrote the majority opinion. "We decline the United States's invitation to contravene the Elections Clause by undermining the Constitution's plain text," they wrote. The majority also said the request likely violates the National Voter Registration Act, which prohibits systemic voter purges less than 90 days before an election day, and, citing the district court's findings, said 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 dissented, calling what the Justice Department proposed "a modest remedy." If California receives the suspect ballots, mixes them with legitimate ballots and processes them, he wrote, the potentially illegal votes will be counted toward the election of representatives, threatening to dilute the votes of eligible citizens.

This is the Justice Department's third straight court loss in the case. The department sued California on October 15, after giving the state 48 hours to review its list of more than 20,000 people and set aside their ballots until their citizenship could be confirmed. On October 26, the Ninth Circuit dismissed the department's first emergency appeal 2-1 because the district court had not yet ruled; on October 28, U.S. District Judge David Carter denied the request for a temporary restraining order, saying segregating the ballots would wreak havoc on the election already under way. The Justice Department filed a renewed emergency request on October 29 and asked for a ruling by October 30; the same three-judge panel again ruled 2-1 against it.

California officials had earlier rebuffed the department's demand, questioning the reliability of the federal list and noting that California law requires voters to attest to their citizenship under penalty of perjury when registering, which is all federal election law requires. The California Attorney General's office has also noted that the federal government has admitted the list could include U.S. citizens. California has more than 23 million registered voters, and the flagged list is a tiny fraction of that total; according to court filings and earlier reporting, more than 3.7 million Californians had already cast ballots as of October 28, and ballot processing is continuing in counties across the state.

Democracy Docket reported that the Justice Department is expected to appeal immediately to the U.S. Supreme Court. The underlying lawsuit in district court, over the department's demand that California act on its voter list, continues, with a further hearing set for November 13 and witness lists on the validity of the department's data and methodology due by November 6. The Justice Department has made a similar demand in Washington state, seeking to segregate ballots from hundreds of voters it alleges are noncitizens.

Related: Follow-Up: Federal Judge Carter Denies Justice Department Bid to Set Aside More Than 20,000 California Mail Ballots

Source: GSM · USA (original Chinese edition)

Photo: 图：位于华盛顿的美国最高法院大楼（资料照片）。司法部在本案中连续第三次受挫，外界预计其将向最高法院提出紧急申请。Joe Ravi 摄，CC BY-SA 3.0，经 Wikimedia Commons 发布。 / Photo: The U.S. Supreme Court Building in Washington (file photo). After its third straight court loss in the case, the Justice Department is expected to seek emergency relief from the Supreme Court. By Joe Ravi, CC BY-SA 3.0, via Wikimedia Commons.

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