A divided panel of the Ninth Circuit Court of Appeals on Friday refused the Justice Department’s emergency request to make California keep about 20,000 mail ballots tied to suspected noncitizens separate from the rest of the vote. Judges Mark J. Bennett and Gabriel P. Sanchez joined an unsigned order denying the request. Judge Patrick J. Bumatay dissented.
Self Reliance Central reported Friday that U.S. District Judge David O. Carter had refused the same request on Oct. 28, saying it would “wreak havoc.” The Justice Department sued California on Oct. 15.
The majority
The two judges ruled that the department had not shown it was likely to win, that it would suffer irreparable harm, or that the balance of interests favored it. Because the department asked for an order forcing the state to act, it had to show the law and facts “clearly favor” its side.
“Nothing on the face of § 611 prescribes a process California must follow when handling challenged ballots,” the order said, referring to the federal law that makes it a crime for noncitizens to vote in federal elections. The judges also cited Carter’s finding that the department’s process for building its October list of suspect voters “was not credible.”
Granting the request “would provoke catastrophic change, upending the administration of the election,” the majority wrote. “There is a material risk that granting the United States its requested relief would result in disenfranchisement,” it added, according to Reuters.
The dissent
Bumatay said the remedy the department sought was simple. “This problem calls for a straightforward remedy: a simple command to stop commingling ballots,” he wrote. Once ballots are mixed, he said, “That harm cannot be undone.” He also wrote that “federal criminal prohibitions preempt conflicting state law.”
He closed: “California decided long ago that aliens can’t vote in its elections. Today, the federal government merely seeks to safeguard that decision. We should have let them try.”
What comes next
The Justice Department has not said whether it will go to the Supreme Court. Reuters reported the ruling could set up a Supreme Court showdown before Tuesday’s election.
It is the second time this week the same panel turned the department away. On Oct. 26, it dismissed an earlier emergency appeal 2-1 for lack of jurisdiction, calling the emergency “self-constructed,” Fox LA reported.
The majority also wrote that the Purcell principle, the Supreme Court’s caution against changing election rules close to an election, “applies with even greater force” once voting is under way.
The bottom line
The Justice Department asked only that 20,000 ballots be kept in a separate pile until their legality could be checked. That would not disenfranchise any lawful voter, because a lawful ballot set aside can still be counted. An unlawful ballot mixed into the count can never be pulled back out, which is the point Judge Bumatay made.
The majority leaned on the timing of the request and on the lower court’s doubts about the federal list. If the list has errors, the fix is to review each set-aside ballot one by one, which the ruling now rules out. Federal law already makes noncitizen voting a crime, and courts should not leave the government with no practical way to enforce it.
The Justice Department should take this to the Supreme Court before Tuesday. Congress should also write a clear rule for handling challenged ballots in federal races, so that the next dispute does not depend on which three judges draw the case.