The US Department of Justice (DOJ) appealed to the US Court of Appeals for the Ninth Circuit on Thursday while a federal judge in California had not yet ruled on its request to stop the state from counting mail ballots from more than 20,000 registered voters.
The DOJ claims these voters are likely noncitizens; California disputes that the federal government has shown that. The state also argues the appeal is invalid because the judge has yet to issue a ruling, with a hearing set for October 27. The DOJ counter-argues that the judge’s silence amounts to a denial of its request.
The DOJ filed United States v. California on October 15 in the US District Court for the Central District of California. It argues that California’s sending and counting of mail ballots for voters that federal agencies flagged as likely noncitizens is preempted under the Supremacy Clause because it would facilitate violations of 18 U.S.C. § 611, the federal ban on noncitizen voting. The complaint also asks the court to order the state to set those ballots aside and verify the voters’ citizenship before tabulating them.
California and its Secretary of State Shirley Weber, represented together as the defendants, oppose the request, as does Los Angeles County Registrar Dean Logan, who filed separately. California mails a ballot to every active registered voter and checks the signature on each returned envelope before counting it, according to the Secretary of State’s office. While the DOJ says that process does not check citizenship, Logan said his office cannot withhold or refuse to count ballots “based solely on unverified allegations.”
Judge David O. Carter received the case October 21, after he dismissed the DOJ’s January lawsuit seeking California’s unredacted voter rolls, and set the DOJ’s application for a temporary restraining order (TRO) for argument October 27. The DOJ asked for a ruling by noon the next day, and, when none came, appealed. On Friday it moved for an injunction pending appeal, arguing that once a ballot is removed from its envelope it cannot be traced to the voter, and then filed an emergency motion for relief in the Ninth Circuit. The Ninth Circuit, which docketed the appeal as No. 26-7070, gave California and the other defendants until noon PT Saturday to respond.
California says there is nothing to appeal because the court has not ruled but has set a hearing, and that the notice of appeal is premature. In its TRO opposition, it argues that the United States lacks standing; that § 611 is a criminal ban on individual voters, not a rule for election administration, and Congress did not authorize civil injunctions under it; and that the relief would violate 1) the National Voter Registration Act‘s 90-day ban on systematic voter removals, 2) the Voting Rights Act, and 3) the Purcell principle, under which federal courts generally avoid changing state election rules close to an election.
The state defendants and Logan have also moved to dismiss (State, Logan). Additionally, Logan’s filing argues that the relief would reach few ballots, saying all vote-by-mail ballots were mailed by October 10 and that a verified ballot is separated from its envelope and mixed with others, so it cannot be traced to a voter.
Judge Carter has ordered further opposition by 3 p.m. PT Saturday and DOJ’s reply by 3 p.m. PT Sunday. His order does not address the appeal or the injunction-pending-appeal motion.
