A federal appeals court on Monday dismissed the Trump administration’s emergency motion seeking to force California to sequester 20,000 mail ballots from suspected noncitizen voters, chastising the government for rushing to appeal before a trial judge could issue an initial ruling.
The 2-1 decision from a panel of the 9th Circuit Court of Appeals means the underlying lawsuit is not yet resolved and will be first handled in a lower court, with a hearing on a temporary injunction scheduled Tuesday before U.S. District Judge David Carter, just a week before Election Day.
“The United States’s claimed emergency, at least in part, is a self-constructed one,” the appellate court wrote in a decision that came after rare Sunday arguments.
The Trump administration sued election officials in California to set aside any mail ballots filled out by people on a list Trump administration alleges contains the names of more than 20,000 “likely” noncitizens it says are registered to vote in the state. The Justice Department asked Carter to stop the state from counting those ballots until immigration status checks were completed.
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California officials have questioned the list’s reliability. A state review found that, among those with usable birthplace information, 38.9% were born in the United States.
The government initially asked Carter to rule by Nov. 3. Then, when he scheduled an Oct. 27 hearing on the request, the prosecutors abruptly demanded a ruling by noon the following day, giving him roughly 15 hours to levy his opinion.
When he did not rule, prosecutors filed an emergency appeal to the 9th Circuit Court of Appeals. The majority on a three-judge panel said the Trump administration “failed to allow the district court adequate opportunity to consider” their move to sequester the ballots.
The court did not rule on the merits of the case, though the judges individually hinted at what they thought about the Justice Department’s actions.
Judge Mark Bennett, a Trump appointee, said he had concerns about the provenance of the voter list and warned that the government’s efforts could leave eligible voters disenfranchised and jeopardize Los Angeles County’s election operations.
Judge Patrick Bumatay, another Trump appointee, dissented. He argued that immediate intervention was necessary because any ballots cast illegally would become impossible to identify once votes are being tabulated.
The case is unlikely to be decided in finality by Carter and could make its way to the U.S. Supreme Court before a final ruling is handed down, according to election law experts.
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