Oct. 26 (UPI) — A federal appeals court on Monday rejected a Justice Department demand that sought to force California to set aside 20,000 mail ballots the department claims may have been cast by non-citizens.
The Trump administration had urged the court to intervene in its lawsuit, which is before a U.S. district court in California. District Judge David Carter set a hearing for Tuesday in that case, but the administration appealed when it wasn’t sooner, leading to an unusual Sunday hearing for the appeals court.
After reviewing arguments, the 9th U.S. Circuit Court of Appeals ruled Monday that the appeals court does not have the authority to rule on the lawsuit before the district court does. That hearing is still set for Tuesday afternoon.
“The United States’s claimed emergency, at least in part, is a self-constructed one,” the majority said. “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.”
Two members of the three-judge panel agreed, while a third dissented.
The Justice Department is demanding that California election officials access a flash drive provided by the Justice Department, review a list of people the department claims are not citizens and promise they remove any ballots allegedly cast by those people. When the state did not do so within two days, the department filed the lawsuit.
The effort is the latest by the Trump administration to involve the federal government in how states run elections. The White House has lost more than two dozen court challenges over the past year to force states to release their voter rolls.
During the hearing Sunday, government attorney Matthew Donnelly said the Trump administration put the lists on its list after a “rigorous process.” Judge Mark Bennett of the appeals court questioned if state election officials could legally disqualify voters without “extraordinary proof” by the federal government.
“Congress and the California Legislature have said non-citizens can’t vote,” Bennett said Sunday. “This lawsuit is about, ‘We don’t like the way you’re sorting citizens from non-citizens.’ I just don’t see [federal law] telling California how to do the sorting.”