Court rejects DOJ's emergency bid to separate Calif. ballots over noncitizen claims

A federal appeals court has rejected the Trump administration's late-breaking effort to force California to separate mail-in ballots from 20,000 purported noncitizens.

A 2-1 ruling from a panel of the 9th Circuit Court of Appeals concluded that the Justice Department improperly circumvented a lower-court judge who had scheduled a hearing on the matter on Tuesday and moved too slowly to seek emergency relief.

"[T]he United States failed to allow the district court adequate opportunity to consider its application for a Temporary Restraining Order," the majority wrote. "The United States's claimed emergency, at least in part, is a self-constructed one."

Judge Mark Bennett, a Trump appointee, joined Judge Gabriel Sanchez, a Biden appointee, in turning down the administration's emergency appeal. Judge Patrick Bumatay, another Trump appointee, dissented and said he would have granted the request.

Though the outcome was foreshadowed in a hearing Sunday in which the judges appeared skeptical of their power to take up the Trump administration's case, the dissent by Bumatay created a surprising split.

Bumatay said the Trump administration's view — that a federal criminal law barring voting by noncitizens superseded California's election procedures — would likely prevail in the end, and that every day without relief from the courts increased the likelihood that noncitizens' votes would be improperly counted in the midterm elections.

"The question—does the federal government have the power to stop this potential attack on the integrity of our elections?" Bumatay wrote. "Under both federal law and the Constitution, the answer must be "yes." Simply, the federal government has a sovereign interest in safeguarding federal elections and ensuring that the votes of noncitizens do not undermine our electoral results."

In a separate concurrence, Bennett rebutted Bumatay's position, arguing that the Justice Department would likely fail on the substance of its lawsuit. Bennett said the Trump administration "has offered no workable plan of any kind as to how the remedy it seeks could be accomplished in practice without potential catastrophic consequences to California's ongoing election."