Irreparable harm by allowing noncitizens to vote in violation of their own state laws,
Justice Department attorney Matthew Donnelly told a federal appeals court panel, arguing that the damage would be irreversible and irrevocable.
During rare weekend arguments, a three-judge panel of the 9th U.S. Circuit Court of Appeals questioned the timing, constitutionality, and authority of a Trump administration demand requiring California election officials to set aside 20,000 mail-in ballots. Fox News reported that the emergency hearing lasted for nearly two hours as the panel scrutinized both the government’s legal arguments and whether the court possessed the jurisdiction to intervene.
Judicial Skepticism Over Timing and Constitutional Authority
The Justice Department filed its lawsuit on October 15, roughly two weeks after California began mailing ballots for the midterm elections. The administration accused state officials of failing to meet a 48-hour deadline to review 20,000 names flagged as likely noncitizens on voter rolls, asking a federal judge to withhold counting those ballots until immigration statuses could be verified.
When U.S. District Judge David Carter scheduled a hearing for October 27, the federal government bypassed an immediate lower court ruling by appealing directly to the 9th Circuit for an expedited decision, citing the rapid daily processing of mail ballots. Fox News noted that the Justice Department accused California prior to oral arguments of having a history of mishandling voter rolls.
However, the appellate panel immediately challenged the procedural roadmap. Circuit Judge Mark Bennett, a Trump appointee, questioned whether the appellate court even held jurisdiction to hear the case before a lower court ruling. Bennett also raised concerns regarding the Constitution’s Elections Clause, which grants state legislatures the authority to set the time, place, and manner of congressional elections. It seems to me that you want us to issue an injunction that is entirely inconsistent with the law that the California legislature has adopted pursuant to the Elections Clause,
Bennett told Donnelly, according to Fox News coverage.
Judge Gabriel Sanchez, a Biden appointee, questioned whether the federal government was violating the Tenth Amendment by essentially commandeering the state to enforce federal laws regarding noncitizen voting. Meanwhile, Judge Patrick Bumatay, another Trump appointee, focused on the underlying concerns of verifying eligible voters, suggesting that an emergency order might provide necessary clarity.
Disputes Over Data Reliability and Administrative Burden
Attorneys representing California and Los Angeles County sharply disputed the accuracy of the federal government’s list. Seth Waxman, representing Los Angeles County Clerk Dean Logan, argued that segregating the ballots based on an unreliable list would effectively disenfranchise thousands of eligible voters.
Waxman pointed out the sheer logistical impossibility of the demand, noting that if election staffers spent just three minutes checking each of the expected 2.75 million mail ballots against the government’s list, the process would require 140,000 man-hours, or roughly 16 years of working time. A preliminary review of 200 records from the administration’s list by Los Angeles County staffers revealed canceled or inactive registrations, individuals with no voting history, and voters born in the United States.
Ninth Circuit just finished hearing oral argument in DOJ's case to sequester 20K mail-in ballots in California IMHO, most likely outcome: dismissal for lack of jurisdiction, with Judge Carter hearing case Tuesday. Two of 3 on panel seemed skeptical of DOJ's case on merits too.
Sam Siegel, representing California Secretary of State Shirley Weber, told the panel that the federal government provided no credible evidence to support its suspicions. It has no basis in law or in fact,
Siegel said, adding that the state disputes the premise that noncitizens are voting.
Bennett stated that the appellate panel would attempt to issue a ruling as quickly as possible.
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