A three-judge panel of the Ninth Circuit heard argument by video on Sunday in the Justice Department's appeal in United States v. California, No. 26-7070. The department wants mail ballots cast by about 20,000 people whom federal agencies flagged as likely noncitizens set aside until each voter's citizenship is checked. "I don't see how we have jurisdiction," Judge Mark Bennett said, Democracy Docket and Votebeat reported. Bennett said the panel would rule "as quickly as possible," Fox News reported.
The order will decide whether ballots already in county hands are counted on the normal schedule, eight days before Election Day.
The case is the sharpest of several federal suits this month over who checks a voter's citizenship, and with what list. The department sued California on Oct. 15 and appealed before U.S. District Judge David O. Carter ruled on its request. More than 3 million Californians have already voted, including more than 500,000 in Los Angeles County, Fox News reported.
- Bennett and Judge Patrick Bumatay are Trump appointees; Judge Gabriel Sanchez is a Biden appointee.
- Bennett cited the Elections Clause and Smiley v. Holm, Election Law Blog reported.
- The department has charged 28 people whose names appear on its list, AP reported.
The principals are the three judges, Justice Department lawyer Matthew Donnelly, California's lawyer Sam Siegel, former Solicitor General Seth Waxman for Los Angeles County, and federal prosecutor Bill Essayli. The voters on the list, county election workers and every California candidate wait on the ruling.
Disputedwhether the federal list reliably identifies noncitizens, and whether a federal court may order a state to hold ballots back before the count.
The FramingsJustice Department framing, from Essayli, holds that noncitizen voting in Los Angeles is "very highly likely" and that once ballots are counted "there's no way to go back." California framing, from Siegel and the state's filing, calls the emergency one "of their own making" and says the department's theory would "turn the Constitution on its head." County framing, from Waxman, says checking about 2.75 million mail ballots at three minutes each would take about 140,000 hours. Bumatay, the judge most open to the department, said an injunction could bring clarity and keep illegal votes from the count. Voting-rights framing, from Democracy Docket, calls the bid "dangerous," and San Benito County's clerk said after agents delivered a letter, "we will not be intimidated by agents with guns."
The RecordThe judges' remarks are reported by Fox News, Democracy Docket, Election Law Blog and Votebeat. The department's lawyer could not explain how the list was compiled, Democracy Docket and Election Law Blog reported. Los Angeles County's review of a 200-name sample found many reported U.S. birth: about a quarter, per Votebeat; nearly 40 percent, per ABC News. Confidence that the panel heard the case and has not ruled: certain. Confidence in how many listed voters are noncitizens: low.
What to watch: A Ninth Circuit order, which could come at any time. Judge Carter's hearing on the department's restraining-order request, Tuesday, Oct. 27, at 1 p.m. Pacific. Election Day, Nov. 3.
Sources: AP, ABC News, Democracy Docket, Election Law Blog, Fox News, Votebeat
