A federal appeals court has refused to let the Justice Department set aside about 20,000 California mail ballots, at least for now. The ruling stops the DOJ from jumping the line in its fight over those ballots.
A three-judge panel of the 9th U.S. Circuit Court of Appeals ruled 2-1 on Monday that it can’t take the appeal yet, because the district court hasn’t ruled. That’s the key detail, and it’s where some early headlines got ahead of the facts. In fact, CNN reports the decision turned on jurisdiction and timing, not on whether the DOJ’s claims are right or wrong.
What the appeals court decided on California mail ballots
The panel sent the case back to U.S. District Judge David O. Carter in Los Angeles. The majority was Judge Mark Bennett, a Trump appointee, and Judge Gabriel Sanchez, a Biden appointee. Judge Patrick Bumatay, also a Trump appointee, dissented.
Even so, the majority didn’t go easy on the DOJ. It wrote that the government’s claimed emergency “is a self-constructed one,” according to CNN. In plain English: the judges think the DOJ waited, then complained about the clock.
These are federal appeals judges, not California judges. The ruling is procedural, not a final verdict on the DOJ’s argument. Also, the suit doesn’t ask to remove anyone from the voter rolls. Instead, it asks a judge to make California set aside certain ballots and hold off counting them until officials verify citizenship, according to NBC News.
Where the 20,000 mail-in ballots number comes from
The DOJ filed suit on Oct. 15 against California and Los Angeles County, according to Fortune. It says third parties analyzed a purchased voter list to produce its roster, per CNN. The DOJ calls the people on it “likely” noncitizens, and it says prosecutors have criminally charged 28 of them with illegally voting.
Meanwhile, California’s side says there is no individualized evidence behind the list. A state attorney said the claim “has no basis in law or in fact.” At Sunday’s hearing, Judge Sanchez put the weak spot bluntly: the DOJ’s claims “very much depend on the reliability of that list.”
Neither side’s numbers have been independently verified. We don’t know how the DOJ built the list, and we don’t know how many of the 20,000 are actually noncitizens.
The other side of the argument deserves a fair hearing too. California voters attest under penalty of perjury that they are citizens, and the state requires no documentary proof. U.S. Attorney Bill Essayli’s response, as the Daily Signal reports, is that “attestation is not verification.” That’s a real policy debate, and it will outlast this one lawsuit.
Here’s the thing: what it means for California absentee ballots and voters
If you live in California, this decides whether officials count ballots from flagged voters on the normal schedule. Hundreds of thousands of mail ballots are already in the processing pipeline, per ABC News. If you live anywhere else, it’s a test case. Reuters called the suit the administration’s sharpest move yet to insert itself into a state’s midterm election, and with Republicans narrowly controlling both chambers, close races anywhere could turn on how states run their counts. Voter confidence is already shaky, as our look at why midterm trust polls range from 46% to 74% shows.
Judge Bennett also said at the hearing that the suit appears to clash with the Elections Clause, which gives states authority over how elections are run. That comes from Al Jazeera’s coverage. It was a comment from the bench, not a ruling.
What happens next with California vote-by-mail
The spotlight moves to Judge Carter, who holds a hearing Tuesday, Oct. 27, at 1 p.m. Pacific. According to MyNewsLA, he says he will rule right away.
He’s no stranger to this fight. In January, Carter dismissed a separate DOJ suit seeking California’s unredacted voter list, saying centralizing voter data would chill registration.
If the DOJ loses again, watch for an emergency appeal, possibly all the way to the Supreme Court. That’s speculation for now. Voters weighing other pressures this week may also want our piece on gas prices and midterm voters.
The Tuesday hearing is the next test. Election Day is Nov. 3, and a federal court has about a week to decide what happens to 20,000 ballots. So when Judge Carter rules, will the list at the center of it all hold up?
