Los Angeles — The Trump administration has asked a federal appeals court to quickly weigh in on whether it can temporarily prevent California from counting the ballots of up to 20,000 people it alleges are likely noncitizens after a lower court judge forcefully rejected the request.
The Justice Department said in a late Wednesday filing that it’s essential the 9th Circuit Court of Appeals issue a ruling as soon as possible due to “irreversible ballot processing occurring on an ongoing basis.”
The appeal came just hours after U.S. District Judge David O. Carter issued a blistering order against the department’s last-minute effort to compel California to segregate the ballots from its vote count.
The department says it believes those ballots were sent to people who are registered to vote even though they are not U.S. citizens. Early voting has been underway in the state for weeks and millions of people have already cast ballots.
Carter’s decision was the latest legal setback for President Donald Trump in his efforts to expand federal control over state-run elections in the midterms that will decide control of Congress for the rest of his term. The Justice Department has made similar demands in other states including Washington. Noncitizen voting has been a central focus of Trump’s political messaging for years, although available data indicates it is exceedingly rare.
Trump blasted Carter’s decision on Thursday morning before heading to a campaign rally in South Carolina.
“California is very corrupt. The elections are extremely corrupt. The judge should not have done that but we’ll appeal that, of course,” he told reporters. Trump added without evidence that there are “hundreds of thousands” and then amended it to “millions, in my opinion” of “bad ballots” in California.
Carter, an appointee of Democratic President Bill Clinton, argued that the Justice Department’s demands were a clear violation of the National Voting Rights Act, which prohibits changes to voter rolls or election procedure within 90 days of an election.
Carter also questioned the reliability of the department’s list of names, since both sides agree that an unspecified number of citizens were inadvertently included. He argued that separating the ballots at this point would risk disenfranchising citizens and “wreak havoc” on the election certification process.
Over 500,000 votes have already been processed in Los Angeles County alone, according to court filings. The system also protects voter privacy: Once a vote is processed, it cannot be traced back to the person who cast it.
Carter still has to rule on the federal government’s renewed request for a preliminary injunction, which would bar the state from counting the ballots until the litigation is resolved.
He said Wednesday that if the federal government suspected noncitizens were voting, it could continue to prosecute those cases criminally. Federal authorities have charged over two dozen foreign nationals in California as part of a statewide sweep targeting people officials say have illegally registered or voted in U.S. elections.
The Justice Department has argued that it is in the government’s interest to prevent fraudulent voting before it happens. Federal prosecutors also have said voters won’t be disenfranchised by delaying the tabulation of their ballots while their citizenship is checked — an assertion disputed by county election officials.
The appeal will be the second time that the 9th Circuit Court of Appeals will consider the case.
The first time was just last week when the Justice Department argued before an appeals court panel that a fast ruling on its request was needed to stop any counting of the ballots.
Although the panel ruled it was premature for an appeals court to get involved before a lower-court ruling, two of the three judges wrote separate concurrences making it clear they wouldn’t support setting aside ballots at this late date. They questioned the accuracy of the federal government’s list of alleged noncitizen voters and argued that to set aside votes risks disenfranchising citizens.
One judge dissented, arguing that federal law bars noncitizens from voting and compels California to vet the potentially illegal ballots before they are counted. The failure to do so, he wrote, would cause irreparable harm to the election.
It’s not clear whether the case will appear before a new panel of judges or the same three that reviewed the case last time.
