By Jan Wolfe
Oct 25 (Reuters) – A federal appeals court appeared skeptical on Sunday of a lawsuit filed by President Donald Trump’s administration that seeks to force California officials to set aside thousands of mail-in ballots the administration says were sent to noncitizens ahead of midterm elections.
During a rare weekend oral argument, two judges on a three-judge panel of the 9th US Circuit Court of Appeals sharply questioned a Justice Department lawyer about the lawsuit, a high-profile effort by the Trump administration to boost the federal government’s role in elections ahead of the November 3 midterms.
The Department of Justice’s lawsuit signals the willingness of Trump’s administration to contest midterm results that will decide control of the US Congress, where his fellow Republicans narrowly control both chambers.
At the end of the two-hour oral argument, Circuit Judge Mark Bennett said the three-judge panel would try to rule as quickly as possible.
Trump’s Justice Department has warned election officials across California that they could be targets of federal scrutiny if they refuse to help identify suspected noncitizens on voter rolls. It has distributed to California officials a list of 20,000 people it says are likely aliens registered to vote in the state, a Democratic stronghold.
California has said the state’s safeguards against noncitizen voting are robust and, in a court filing, stated that the Justice Department’s assertions relied on suspect data.
All available evidence indicates that ineligible voting, including noncitizen voting, is exceedingly rare. A Reuters investigation this year found just 129 cases in which noncitizens were federally charged with voting illegally; many appeared to stem from voter confusion or administrative errors, rather than intentional fraud.
The Justice Department filed its lawsuit on October 15 in federal court in Los Angeles. The lawsuit asked a federal judge to order California to separate any ballots it received from people on the administration’s list from the rest of the ballots, and not to count them until it had verified that the people who cast the ballots were citizens.
The department filed an emergency motion with the 9th Circuit to expedite the case.
Bennett, a Trump-appointed judge, said during Sunday’s oral argument that the lawsuit could not be reconciled with a provision of the US Constitution known as the Elections Clause, which gives states the authority to set election processes.
“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 Justice Department attorney Matthew Donnelly. “How can we do that?”
The administration has taken an increasingly aggressive approach to election oversight, pressing states for voter-registration data and arguing that stricter measures are needed to ensure public confidence in the vote. Critics, including Democratic and some Republican election officials, view the moves as federal overreach.
California is the most populous US state and a Democratic stronghold, with 52 seats in the House of Representatives — more than any other state. Democrats are seeking to regain control of the House from Trump’s fellow Republicans in the midterms.
Trump has made California a focal point of his sweeping immigration crackdown since returning to the White House, accusing it of undermining public safety through so-called sanctuary state policies that limit cooperation with federal immigration enforcement.
Trump has also long asserted that California’s immigration policies have facilitated voter fraud.
Circuit Judge Gabriel Sanchez, an appointee of former President Joe Biden, said on Sunday that he was confused by the question of why the appeals court should have jurisdiction to rule at this juncture, noting that the lower court judge assigned to the case had already set a hearing for Tuesday.
(Reporting by Jan Wolfe; Editing by Edmund Klamann and Noeleen Walder)
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