A federal judge moves to put an independent reviewer over the Justice Department list of 20,000 suspected noncitizen voters in California

The Justice Department wants about 20,000 California mail ballots held apart from the count until the citizenship of the people who cast them can be checked. This week two courts told the department to slow down.

On Monday a three judge panel of the Ninth Circuit Court of Appeals turned away the department emergency appeal by 2 to 1. Judge Mark Bennett, a Trump appointee, and Judge Gabriel Sanchez, a Biden appointee, held that the appeals court had no authority to act before the district court ruled, and that the department had not given that court a fair chance to consider the request. “The United States claimed emergency, at least in part, is a self constructed one,” the majority wrote, pointing at the department own delay in suing and in working out what it wanted. Judge Patrick Bumatay, another Trump appointee, dissented. He argued that the federal ban on noncitizen voting likely overrides California procedures and that every day without an order raises the chance that ineligible ballots get counted in the November 3 midterms.

The case went back to Judge Carter in Los Angeles, who heard more than three hours of argument on Tuesday. First Assistant US Attorney Bill Essayli argued for the government that prosecutors hold credible evidence that people on the list are noncitizens, and that Secretary of State Shirley Weber and Los Angeles County Registrar Dean Logan had allowed lawful and unlawful ballots to be mixed together. Michael Cohen, arguing for the state, answered that the department built its case on “data and methods known to be unreliable” and still will not say how the list was generated. Los Angeles County tested the list itself. Of 200 names the county reviewed, nearly 40 percent carried records indicating the person was born in the United States, and more than 70 percent had no voting history at all.

Carter pressed the government on what an emergency order would actually add. Federal law already lets prosecutors charge anyone who votes illegally. “You have got a remedy for goodness sake. Go out and indict,” he said. He described the order the department wants, imposed while voting is already under way, as a monumental change in how California runs its election, and he noted that election officials have until December 3, the certification deadline, to work through disputed ballots. He said he intends to appoint a special master, an independent reviewer answerable to the court, to examine the list and the methods behind it, and to test the state claim that counties cannot practically separate the ballots at this stage. He closed with a warning aimed at statements Essayli office has made about criminal penalties for election officials who keep counting. “This court believes it would be wise, that it would be wise, that any threats to state and county elected employees cease immediately,” Carter said.

Governor Gavin Newsom welcomed the appeals court ruling and urged Californians to vote. Attorney General Rob Bonta said the Constitution leaves the running of elections to the states and Congress, not the president. The department sued on October 15, more than a week after mail ballots went out to every registered voter in the state, and Los Angeles County alone has already processed more than 331,000 of them. Carter said he would rule on the emergency request by Wednesday and bring the parties back within two weeks on the longer question of an injunction.