9th Circuit judges question feds' efforts to regulate election

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(The Center Square) — A three-judge panel of the U.S. Court of Appeals for the 9th Circuit appears skeptical of the U.S. Department of Justice’s attempt to force California election officials to segregate ballots cast by 20,000 voters suspected of being noncitizens.

The San Francisco panel — made up of Trump appointees Mark Bennett and Patrick Bumatay, along with Biden appointee Gabriel Sanchez — raised sharp questions about the DOJ’s legal authority and timing, as well as the logistical feasibility of the Trump administration's demand so close to Election Day.

During a hearing on Sunday, Bennett noted that while federal and state law prohibit noncitizens from voting, federal statutes do not grant the executive branch the authority to dictate how California sorts citizens from noncitizens. State law currently accepts a voter's signed statement under oath as sufficient proof of citizenship.

The judges also expressed concern over the procedural rush. The DOJ sought an emergency federal appellate intervention while U.S. District Court Judge David Carter in Santa Ana, Calif. was actively weighing the matter. Bennett and Sanchez pointed out that federal prosecutors delayed taking action despite knowing about the suspect voter list well before demanding instant court intervention.

Additionally, the 9th Circuit panel expressed concern that last-minute federal intervention would violate long-standing Supreme Court precedent discouraging judicial interference in state administration close to an election. Local election officials also testified to the operational chaos the order would cause. Counsel for Los Angeles County noted that attempting to isolate 20,000 mail-in ballots mid-process would require virtually impossible operational shifts.

The 9th Circuit panel is expected to issue a ruling on the DOJ's emergency motion shortly.

The California Secretary of State's Office told The Center Square on Monday that it was “unable to accommodate an interview” and had no additional information.

The offices of Gov. Gavin Newsom and Attorney General Rob Bonta, both Democrats, did not respond to The Center Square's request for comment.

Meanwhile, voting rights advocates defended state officials, arguing that late federal demands risk disenfranchising lawful voters.

“California's election officials are dedicated public servants who work every day to protect the integrity of our elections and the rights of voters,” said Jenny Farrell, executive director of the League of Women Voters of California.

“The League of Women Voters of California stands with them as they carry out their responsibilities under the law," Farrell said in an email to The Center Square. 

She added that no eligible voter should worry that their ballot will be set aside based on unverified allegations.

“We want every Californian to know that our elections are safe and secure, their vote matters and their voice deserves to be heard,” said Farrell.

The U.S. DOJ maintained that its actions are necessary to safeguard election integrity and enforce federal law against noncitizen voting.

“We’re not going to comment before we get a ruling. We believe in the merit of our position,” DOJ spokesperson Kiersten Pels said in an email to The Center Square.

Pels noted that in the last eight weeks alone, the Department of Justice has charged 133 noncitizens across 21 states with illegal voting and registration offenses, bringing total election fraud-related charges under the current administration to 176 people.

Legal and election integrity experts argue the issue goes beyond California, pointing to national security and voter confidence concerns across state lines.

The Trump administration on Monday demanded Washington state set aside ballots from 400 people that the DOJ believes may be noncitizens. The demand was being reviewed by Washington Secretary of State Steve Hobbs, whose office said it received about 60 subpoenas from the DOJ since last month for details about voters. The Center Square on Monday filed a request with Hobbs' office in Washington state for the subpoenas.

Hans von Spakovsky, senior legal fellow and election expert with a nonprofit called Advancing American Freedom, criticized California officials for fighting the federal request in court.

“It tells you something very revealing and unfortunately badly revealing about California officials that they don't even want to check," von Spakovsky told The Center Square. 

California officials don't what to investigate whether certain voters listed by the U.S. Department of Justice are noncitizens, von Spakovsky said. “It tells you that they're not interested in finding or preventing aliens from illegally registering and voting.”

Addressing claims by California state leaders that noncitizen voter fraud is not widespread, von Spakovsky pushed back on the argument.

“That's an excuse they use. It's as if you should say that we really shouldn't take any precautions against bank robberies in this country because it's not widespread. That's a ridiculous, absurd claim,” von Spakovsky said, referencing recent DOJ charges against 48 noncitizens for illegal voting across multiple states including Nevada, Pennsylvania, California, Florida and New York.

He pointed to state policies such as automatic voter registration through motor vehicle departments as a key vulnerability.

“In California, for example, they have automatic voter registration,” von Spakovsky explained. “When you go in to get a driver's license, they don't ask you, 'Would you also like to register to vote?' The state of California just automatically registers you, and when you ask them, they say, 'Well, it's up to the individuals to tell us they're not eligible to vote.' And that's why so many aliens apparently are getting registered to vote out there.”

He added that voters nationwide should care about the outcome in California because structural vulnerabilities exist across state lines.

“This is happening all over the country,” von Spakovsky said. “Even in the best states, those who actually want to have secure elections, they are not doing enough to verify citizenship. Many of them are being prevented from verifying citizenship by bad court decisions. And in many respects, we still have an honor system when it comes to the registration of people who want to vote in which we simply rely on their claims that they are U.S. citizens.”

Von Spakovsky rejected the assertion that setting aside suspect ballots disenfranchises voters.

“The Justice Department isn't asking them to disenfranchise anyone,” said von Spakovsky, who worked at the DOJ from 2002 to 2005. “They're simply saying, 'If you get a ballot in from any of these individuals, before you count it, you should investigate and verify they're actually U.S. citizens.' So if it turns out that somehow someone has mistakenly gotten on that list, they're going to be able to vote, and their vote's going to count. And yet they don't even want to start to investigate any information that indicates someone might not be a citizen. That makes no sense whatsoever.”

The emergency appeal comes amid broader federal legal actions surrounding state election administration, including a recent DOJ filing in Alaska attempting to delay certification of its U.S. Senate race under specific procedural conditions.

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