A federal appeals court refused Monday to order California to sequester 20,000 ballots of people President Trump says likely are noncitizens, saying the administration didn’t give a lower court enough time to weigh the case.
The 2-1 decision sends the case back to the district judge, who has scheduled arguments for later this week.
The majority said the Trump administration created a time crunch by waiting until late in the election season, then improperly tried to hurry District Judge David Carter along.
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“That these proceedings encroach on the cusp of an election is a delay entirely of the United States’ own making,” wrote Judge Gabriel Sanchez, a Biden appointee and one of the two judges in the majority. The other was Judge Mark Bennett, a Trump pick.
Judge Sanchez said ballots started going on Oct. 1, and DOJ waited weeks to file its lawsuit. Indeed, some ballots have already been tallied — including, potentially, those of the alleged noncitizens.
He also said not only was the administration’s request for speed wrong, but its demand of state election officials — to sequester the ballots until election officials redetermine their citizenship — was likely impossible.
Judge Patrick Bumatay, a Trump pick, dissented.
He said the federal government does have the power to demand the ballots not be counted and the Supremacy Clause of the Constitution means the administration can sue to enforce that.
Judge Bumatay said the emergency was great enough that the appeals court should have stepped in.
“We should’ve granted the federal government relief — federal law precludes California from commingling ballots likely cast by aliens with legitimate ballots, because it encourages and induces illegal voting,” he wrote. “Stopping that practice for those identified as likely noncitizens is the bare minimum.”
California Gov. Gavin Newsom called the ruling “a welcome speed bump” for Mr. Trump’s agenda.
He told voters to punish the president at the polls.
“Vote early, go to a vote center, put your ballot in a dropbox. If everyone who cares about democracy participates, this election won’t be close — and none of Trump’s lies or conspiracy theories will be able to call that result, and the will of people, into doubt,” the governor said.
A single district judge in Florida recently ruled that the federal law barring noncitizens from voting was unconstitutional. That decision is on appeal and no other court has adopted that reasoning.
The 20,000 names identified by the federal government are fewer than the 190,000 names Homeland Security said it spotted over the summer.
The smaller tally came from taking a list of California voters, running it through third-party databases to try to match those names to identities, then checking them in government files.
DHS’s citizenship agency looked for people who have immigration files associated with them, then looked for evidence that they have achieved citizenship. Those who haven’t were deemed good candidates to be noncitizens.
That list was then forwarded to Homeland Security Investigations, DHS’s detective force, which reviewed it and came up with the final list, which was given to the state.
State officials said they distrusted the process, pointing to previous lists from DHS to other states that were found to have included actual citizens as potential noncitizens.
Judge Sanchez, in Monday’s ruling, said those problems likely persist. California has in the past insisted it doesn’t have a problem of noncitizen voting.
When The Washington Times in 2024 sought records of noncitizen voters booted from the rolls, the California secretary of state’s office reported that it didn’t “have any data to report on instances of noncitizens voting or being incorrectly registered and removed from the voting rolls.”
Local jurisdictions, though, have acknowledged the issue.
Orange County last year notified the federal government it removed 17 people from its voter rolls after realizing they weren’t citizens. The county said it investigated after receiving complaints from noncitizens that they received ballots in the mail under California’s all-mail election system.
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