A three-judge Ninth Circuit panel on Monday dismissed the Justice Department's emergency appeal in United States v. California, No. 26-7070, by a 2-1 vote. The unsigned order said the court "lacks jurisdiction at this stage in the litigation," ABC News reported. The department had asked that mail ballots from about 20,000 voters flagged by federal agencies as likely noncitizens be held aside until each voter's citizenship is checked. The case returns to U.S. District Judge David O. Carter in Santa Ana, who holds a hearing Tuesday afternoon.
For now the ballots stay on California's normal counting schedule, seven days before Election Day.
The panel ruled on procedure. It said the department "failed to allow the district court adequate opportunity to consider its application," giving Carter a "mere 15 hours," FOX 11 Los Angeles reported. The department handed Los Angeles County its list on a thumb drive on Oct. 13, with 48 hours to respond, and sued two days later. More than 3 million Californians have already voted, the Los Angeles Times reported.
- Judges Mark Bennett and Patrick Bumatay are Trump appointees; Gabriel Sanchez, a Biden appointee.
- Los Angeles County checked 200 of the 7,035 listed names with county addresses.
- The department separately asked Washington state to set aside about 400 ballots.
The principals are the three judges, Judge Carter, Secretary of State Shirley Weber, Los Angeles County Registrar Dean Logan and department spokeswoman Kiersten Pels. Voters on the list, county clerks and every California candidate wait on the next order.
Disputedwhether a federal court should order a state to hold back ballots on the strength of a federal agency list, and whether that list identifies noncitizens.
The FramingsJustice Department framing, from Pels: "We believe in the merit of our position," and ballots counted beside lawful ones cannot be separated later, the department argued. Dissent framing, from Bumatay: California "frustrates federal law" by commingling ballots, so "its actions are preempted." Majority framing, from Sanchez: the demand "would transform California's election rules for an election that is already underway." State framing, from Gov. Gavin Newsom: the ruling is "a welcome speed bump." Conservative legal framing, from Hans von Spakovsky of Advancing American Freedom: California uses the case as an excuse to say noncitizen voting is not widespread, the Center Square reported.
The RecordThe 2-1 split and the jurisdiction holding are reported by ABC News, the Los Angeles Times and Democracy Docket. Of the county's 200-name sample, fewer than half were active voters, more than 70 percent had never voted, and about a quarter said they were born in the United States, Votebeat reported. No court has found any listed voter to be a noncitizen. Confidence that the appeal was dismissed: certain. Confidence in the list's accuracy: low.
What to watch: Judge Carter's hearing Tuesday, Oct. 27, at 1 p.m. Pacific, and his ruling. Any department emergency application to the Supreme Court. Election Day, Nov. 3.
Sources: ABC News, Democracy Docket, FOX 11 Los Angeles, Los Angeles Times, The Center Square, Votebeat
