An appeals court rejects the Justice Department bid to set aside 20,000 California mail ballots

A federal appeals court refused on Monday to let the Justice Department set aside more than 20,000 California mail ballots a week before the midterm elections.

The 9th Circuit Court of Appeals denied the department's emergency appeal after a rare Sunday hearing held over Zoom. Judge Mark Bennett, a Trump appointee, and Judge Gabrial Sanchez, a Biden appointee, ruled that the appeals court did not have the authority to rule on the lawsuit before the district court has addressed it. Judge Patrick Bumatay, a Trump appointee, dissented.

The majority put part of the blame for the emergency on the government itself. "The United States's claimed emergency, at least in part, is a self-constructed one," the judges wrote. "At least part of the delay here is attributable to the United States's own delay in filing suit, in realizing that existing California state law governs the issuance and processing of ballots, in recognizing that California has millions of registered voters and processes ballots on a schedule aligned with that scale, and in communicating to the court its desired relief."

The ruling sends the case back to the district court in California, where Judge David Carter has a hearing scheduled for Tuesday at 4 p.m. Eastern time. The Justice Department sued earlier this month and asked Carter for an emergency order. When he had not ruled by Thursday, the department appealed on the theory that his silence amounted to a denial.

The lawsuit is the first time the Trump administration has asked a court to stop a state from counting votes. The department says the 20,000 people on its list are likely noncitizens registered to vote in California. Justice Department officials said on October 19 that the list included 28 people who had been charged with voting illegally. The administration has not said how many of the 20,000 have actually cast a ballot in this election.

California answered that the federal list does not hold up. In a court filing, Los Angeles County Assistant Registrar Recorder Monica Flores said the sample the county checked included canceled and inactive registrations, people with no voting history, and voters who appeared to have been born in the United States, which the filing called strong evidence of citizenship. Sam Siegel, the lawyer for Secretary of State Shirley Weber, told the panel the federal government had provided no credible evidence for its suspicions. "It has no basis in law or in fact," he said. "We just dispute the premise that noncitizens are voting." He argued that if the administration disagrees with how California runs its elections, it can ask Congress to change the process.

California holds 52 seats in the House of Representatives, more than any other state, and control of the House is one of the prizes on November 3. States run their own elections under the Constitution, and the California case has become the sharpest test so far of how far the federal government can reach into that process in the middle of a vote.