A three-judge panel of the Ninth Circuit ordered argument for 1 p.m. Pacific time Sunday, Oct. 25, on the Justice Department's emergency request to stop California and Los Angeles County from counting mail ballots cast by people federal agencies flagged as likely noncitizens, the court's order shows. Judges Mark Bennett, Patrick Bumatay and Gabriel Sanchez will hear 30 minutes a side by video. California filed its opposition by the Saturday noon deadline. On Friday the department gave at least 18 counties 48 hours to set the flagged ballots aside, the Los Angeles County registrar's office said, AP reported.
The hearing sets a federal list against a state count while the count is underway.
The department sued California on Oct. 15 and appealed on Oct. 22, after U.S. District Judge David O. Carter let its deadline pass. It called his silence a "constructive denial." California's brief says 331,000 Los Angeles County ballots had been returned and processed by Oct. 20. AP, citing state filings, counts more than 330,000 counted statewide.
- The appeal is No. 26-7070; the list holds about 20,000 names.
- California says only 7,035 of the names had Los Angeles County addresses.
- San Bernardino's letter listed 1,133 names; Napa's listed 42.
Attorney General Todd Blanche and First Assistant U.S. Attorney Bill Essayli lead the federal side; Attorney General Rob Bonta, Secretary of State Shirley Weber and Registrar Dean Logan lead the state's. Voters on the list, county election workers and every California campaign wait on the panel.
Disputedwhether the federal list is reliable enough to hold ballots back, and whether a federal court may order a state to stop counting them.
The FramingsJustice Department framing, from Essayli, holds that "it's at a minimum of 20,000. That's the floor," and that any official who knowingly processes a noncitizen's ballot is "opening themselves to legal jeopardy." Irreversibility framing, from the department's filing, holds that "every minute of processing" without setting ballots aside causes harm, because a counted ballot cannot be pulled back. State framing, from California's brief, calls the request "as unprecedented as it is meritless" and says the court lacks jurisdiction because no order was entered. County framing, from Los Angeles County, warns that a hold "would establish that any federal agency, armed with a list, may halt the count in any county."
The RecordThe panel and the time come from the court's order. California's brief reports a sample in which 38.9 percent of listed names recorded a U.S. birthplace and 42.9 percent had canceled registrations. A department spokeswoman said it is "not requesting a purge, cancellation of registrations, or any programmatic action," CBS reported. No court has found any voter on the list to be a noncitizen. Confidence that argument is set for Sunday: certain. Confidence in how many listed voters are noncitizens: low.
What to watch: The panel's ruling, possibly Sunday night. Carter's hearing Tuesday, Oct. 27. Any request by California for rehearing by the full Ninth Circuit.
Sources: AP, CBS News, Democracy Docket, Fox News, RedState, California Attorney General (opposition brief), U.S. Court of Appeals for the Ninth Circuit (order)
