Appeals court declines to rule on federal bid to set aside California ballots of alleged noncitizens

LOS ANGELES - An appeals court on Monday declined to rule on whether California elections officials can count roughly 20,000 ballots that the Justice Department alleges belong to noncitizen voters.

Appeals court ruling on alleged noncitizen voting 

The decision sets the federal government and state officials up for another legal showdown on the matter on Tuesday in front of a federal district judge, giving the federal government a very short window to compel California to sequester votes before the Nov. 3 elections.

The Republican administration sued election officials in the heavily Democratic state in mid-October, accusing them of failing to meet a 48-hour deadline to review a list of 20,000 people it alleged were likely noncitizens on the state's voter rolls. The administration asked the judge to stop the state from counting those ballots until immigration status checks could be completed. 

After a district judge had scheduled an Oct. 27 hearing on the issue, the federal government appealed to the 9th Circuit Court, arguing that a faster decision was needed to prevent the further counting of votes.

But two of the three 9th Circuit Court judges rejected that argument on Monday, writing that the federal government "failed to allow the district court adequate opportunity to consider" their initial request to sequester the ballots in question.

The Justice Department didn't immediately respond to an emailed inquiry.

California Governor Newsom's statement 

California Governor Gavin Newsom issued a statement on Monday, following the 9th Circuit Court of Appeals' ruling. He called the ruling a "positive development" and a welcome "speed bump" to President Trump's "disgusting attacks on the Constitution and our country's democracy." 

"Trump is illegally trying to seize powers in the Constitution entrusted to others so he can stay in power. This lawsuit is just the latest step," Newsom said. 

Newsom encouraged Californians to participate in Democracy by voting early and going to a voting center and putting their ballot in a dropbox. 

Political observers and analysts weigh in 

What they're saying:

Tony Lopresti, Santa Clara County Counsel, said on KTVU's The Four that this was a disturbing attempt by the federal government to interfere in elections. He added that the counsel for the DOJ in court could not say where the list of 20,000 alleged noncitizen voters came from, only that it was purchased from a third party. 

"The federal government is not under strong footing in any elements of their challenges whether we're looking at California or Alaska," said David McCuan, Sonoma State University political science professor.

McCuan's interpretation of today's 9th Circuit Court decision is that the court is saying the speed at which the federal government wants to operate is suddenly questionable. 

"The government pushing all of a sudden to have these names erased or taken out and then provide proof later as to whether or not they are supposed to be on the voters roles is not how the process works," said McCuan. "This is about creating election interference. For California to kick people off of the [voter] rolls is something that has to happen more than 90 days out from the election."  

McCuan also cites the Purcell Principle, that would not allow the DOJ to interfere in an election on the state level 90 days before an election. 

What's next:

The next hearing on California's ballot dispute is set for Tuesday. McCuan said the hearing will likely reject what the federal government has said. "This could end up in the Supreme Court by the end of the week," McCuan said. "Something to watch and whether the Supreme Court takes up any actions literally at that point will be just a few days before the November 3 election." 

 

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