Ninth Circuit lets California count ballots

Approximately 20,000 ballots remain in the mix for California’s upcoming elections after a federal appeals court declined to stop the state from counting them on Monday. The decision was reached by the Ninth Circuit Court of Appeals in a 2-1 vote, leaving the dispute between the Trump administration and California election officials to be resolved at a lower level.

The ruling sends the case back to a federal district judge in Southern California. Arguments from both sides are scheduled for Tuesday at 1 p.m. This timeline gives the federal government a narrow window to try to compel California to set aside the votes before the November 3 election date. The Justice Department filed its initial suit in mid-October, accusing state officials of missing a 48-hour deadline to review a list of 20,000 people it identified as likely noncitizens on the voter rolls.

Judge Gabriel Sanchez, appointed by President Joe Biden, wrote that it was premature for the appeals court to intervene. He noted that the federal government failed to give the district court enough time to consider the initial request. Sanchez argued that the urgency of the situation was partly due to the government’s own decisions to file the case close to the election date. He stated that setting aside the ballots now would transform election rules and usher in electoral chaos.

Judge Mark J. Bennett, nominated by Donald Trump, joined the majority opinion. He wrote that the administration’s arguments lacked support in the law and that the Constitution did not appear to grant the federal government the power to force California to separate the ballots. In a separate concurrence, he questioned the accuracy of the federal list and argued that removing votes at this late stage risks disenfranchising citizens who are actually eligible to vote.

Judge Patrick Bumatay, appointed by Trump, dissented from the decision. He argued that federal law bars noncitizens from voting and that California is required to vet the potentially illegal ballots before they are counted. Bumatay wrote that stopping the practice for identified likely noncitizens is the bare minimum and that the government has an interest in preventing illegal voting before it happens rather than prosecuting it after the fact.

California Attorney General Rob Bonta, a Democrat, called the ruling a welcome speed bump against the administration’s attacks on the Constitution. In a statement, he urged voters to cast ballots early and participate in democracy. Los Angeles election officials previously told the court that a random sample of the voters identified by the Department of Justice as immigrants seemed to have been born in the United States. The Justice Department stated that there is as much to lose from keeping the potentially illegal ballots in the count as there is to removing them.

The decision marks another legal development in the administration’s effort to assert greater federal control over state-run elections. Noncitizen voting has been a central focus of Trump’s political messaging, although available data indicates the practice is exceedingly rare. Neither the Justice Department nor the Office of the U.S. Attorney in the Central District of California immediately responded to an emailed inquiry for comment on the ruling.