A federal appeals court denied a request from the Justice Department Monday night to intervene in its lawsuit against the State of California over 20,000 voters the Trump administration claims are noncitizens, with one of the three judges invoking the separation of powers in his opinion.
A three-judge panel of the Ninth Circuit court of appeals said that it lacked jurisdiction to grant the administration’s petition, while a hearing before a district court, scheduled for Monday afternoon, was pending. The opinion was split 2-1, with each judge writing an opinion about the merits of the case. One of the judges for the majority, Trump appointee Mark J. Bennett, provided several reasons for why he would’ve ruled against the administration on the substance, including the role of Congress relative to that of the executive branch and the courts.
“If Plaintiff believes requiring additional confirmation of citizenship is necessary for vote-by-mail ballots, I believe the appropriate audience for that suggestion, in full accord with the plain language of the Elections Clause [of the Constitution], is Congress, not the courts,” Bennett wrote.
DOJ sued on October 15 to effectively sideline the 20,000 suspected noncitizen voters until California officials independently verified their citizenship or worked with the administration to do so. The determination stems from its comparisons of public voter lists with federal tools to find apparent noncitizens, an approach that has yielded big misses, such as the one in Nevada. The reliability of its approach aside, however, Bennett had a list of concerns about the clash between a state’s prerogatives and federal intervention, and between the different branches of the federal government.
He noted that California already has eligibility requirements and procedures for challenging a voter: an affidavit attesting to citizenship, among other qualifications, at the time of registration; and providing documentary evidence against a voter at the precinct level. Regardless of one’s opinion of the sufficiency of those policies, it is up to the California state legislature or Congress itself to expand beyond them, should either decide to. Allowing the executive branch instead to use a particular provision of federal law “to prescribe how [California] must process ballots once received would contravene the Elections Clause,” Bennett stated.
Additionally, Bennett cited the 90-day freeze before Election Day on making bulk changes to voter rolls, part of the National Voter Registration Act, as a reason that the administration’s demand of California might actually be illegal. He also brought up the Purcell principle in election case law: that “lower federal courts should ordinarily not alter the election
rules on the eve of an election.”
The Ninth Circuit’s opinion concerned the procedural grounds of the Justice Department’s request only. After the department’s initial filing on the 15th, its lawyers attempted to expedite the legal process, deciding that a district court hearing scheduled for the Monday of this writing was not timely enough to satisfy the administration’s aims. It took up its cause, then, one level higher, at the appellate level.
“The United States’s claimed emergency, at least in part, is a self-constructed one,” however, as the court’s opinion reads. “At least part of the delay here is attributable to the United States’s own delay in filing suit, in realizing that existing California state law governs the issuance and processing of ballots, in recognizing that California has millions of registered voters and processes ballots on a schedule aligned with that scale, and in communicating to the court its desired relief.”
Meanwhile, the Trump administration made a similar request of Washington on Monday as it did of California, that officials sequester the ballots of 400, not 20,000, voters it believes are noncitizens.
Taking Elections Seriously, with Gabriel Sterling and Stephen Richer