Appeals court lets California keep counting ballots tied to 20,000 voters the Justice Department flagged

A federal appeals court on Monday declined to stop California from counting mail ballots tied to more than 20,000 voters whom the Trump administration says are likely noncitizens, ruling 2-1 against the Justice Department, Al Jazeera reported.

The 9th U.S. Circuit Court of Appeals, based in San Francisco, found that the Justice Department had not given the lower-court judge an adequate chance to consider the case, so it would be premature for the appeals court to weigh in, NBC News reported. Circuit Judge Gabriel Sanchez wrote that the department “asks the federal court to dictate to a state legislature a matter squarely within the state’s traditional domain,” which he said could invite disorder and confusion. Neither outlet named the dissenting judge.

What the department asked for

The Justice Department sued California on October 15 in federal court in Los Angeles, less than three weeks before the November 3 midterm elections. It asked a judge to order the state to separate any ballots received from people on its list from the rest, and not to count them until it verified that the voters were citizens. It also filed an emergency motion asking the 9th Circuit to expedite the case.

Department officials said on October 19 that the list of more than 20,000 voters included 28 people who had been criminally charged with illegally voting, NBC reported. NBC said its article does not state how many people on the list submitted mail ballots. Al Jazeera reported that the administration has not publicly explained how it built the list or how it determined that the flagged voters were ineligible.

California’s response

California says its safeguards against noncitizen voting are robust, and its court filing called the department’s data “suspect,” according to NBC. Lawyers for Secretary of State Shirley Weber said in a filing that the case is “a reckless political stunt” and warned that it “threatens to disenfranchise thousands of Californians this election.” California Attorney General Rob Bonta, a Democrat, called the ruling a welcome setback to the administration’s attacks on the Constitution and democracy, NBC reported.

California has 52 House seats, more than any other state. The case remains pending in the lower court, where a hearing was scheduled for Tuesday, October 27.

A pattern of court losses

The Justice Department has sued 30 states and Washington, D.C., seeking full voter rolls. Al Jazeera and NBC both reported that it has lost 26 of those cases and won none. CBS News counts 31 lawsuits in total, updated October 26: 27 lost, one settled and three pending in Delaware, Hawaii and Idaho. Oklahoma agreed to turn over its voter registration list, and the department voluntarily dismissed that suit. The department has appealed most of the dismissals. The 6th Circuit upheld a lower court ruling rejecting its bid for Michigan’s voter rolls, the only appellate decision reported so far, CBS said.

NBC reported that the department has told election officials in all 50 states they could face criminal prosecution if they knowingly let noncitizens remain on rolls or cast ballots. Voting rights advocates have said the methods could wrongly flag naturalized citizens for removal from the rolls.

What the numbers show

A Reuters investigation published in July found 129 federal cases in which noncitizens were charged with illegal voting, according to NBC. Many appeared to stem from voter confusion or administrative errors rather than intentional fraud, the investigation found.

The department’s list of more than 20,000 names is the subject of the district court hearing. The midterm elections are on November 3.