Appeals Court Doubts DOJ Bid to Set Aside 20,000 California Ballots. Fight Fraud With Proof, on Time.
A 9th Circuit panel sounded skeptical in a rare Sunday hearing of the Justice Department's bid to make California set aside about 20,000 mail ballots.
The facts come first below. My opinion follows in the section marked as opinion.
A federal appeals court in California sounded skeptical Sunday of the Justice Department's emergency request to make California set aside mail ballots from about 20,000 voters the Trump administration says are likely noncitizens. The three-judge panel of the 9th U.S. Circuit Court of Appeals held a rare weekend hearing but did not rule. A decision is expected soon, the Los Angeles Times reported.
The Justice Department sued California Secretary of State Shirley Weber and Los Angeles County Registrar-Recorder Dean Logan on Oct. 15. It wants ballots from the flagged voters kept apart and left uncounted until their citizenship is confirmed, according to Reuters, as published by NBC News. Two days before the suit, Acting Deputy Attorney General Trent McCotter gave Weber and Logan 48 hours to set aside the ballots of the 20,000 voters, whom he called "likely noncitizens," the Times reported.
What the judges asked
The department went to the appeals court before the trial judge, U.S. District Judge David Carter, had ruled. Carter has set a hearing for Tuesday, Oct. 27, Democracy Docket reported. Judge Mark Bennett, a Trump appointee, doubted the appeals court could act first. "How do we have jurisdiction when the district court has said it's going to rule expeditiously?" he asked. "I don't see how we have jurisdiction."
Bennett also raised the Constitution's Elections Clause, which lets states set the manner of their elections, subject to Congress. "It seems to me that you want us to issue an injunction that is entirely inconsistent with the law the California Legislature has adopted pursuant to the Elections Clause," Bennett said, according to the Times. "How can we do that?"
Judge Gabriel Sanchez, a Biden appointee, pressed the government on where its list came from, including what role unnamed third parties played. Justice Department lawyer Matthew Donnelly could not answer, the Times reported. Judge Patrick Bumatay, another Trump appointee, seemed most sympathetic to the government. "I think the government is also concerned about not having the illegal vote count," he told the county's lawyer, Democracy Docket reported.
Donnelly said federal and state law both bar noncitizens from voting, but "the problem is that California isn't interested in enforcing that provision," the Times reported. California's lawyer, Deputy Solicitor General Samuel Siegel, called the case "an emergency of their own making," Democracy Docket reported.
The stakes
State and county officials say the list is unreliable. Logan said a first review of some of the names found many people who were born in the United States, were not registered or had never voted. More than 3 million Californians have already voted, the Times reported. So far, the administration has charged 28 people in California with voting-related crimes, Democracy Docket reported. A Reuters investigation this year found 129 cases nationwide in which noncitizens were federally charged with voting illegally, NBC News reported.
Opinion: Catch every illegal vote, by the rules the Constitution sets
Let me say plainly where I stand. Noncitizens have no business voting in American elections, and every illegal ballot cancels the vote of a citizen. If the federal government has real evidence that someone who is not a citizen voted, it should prosecute that person. Judge Bumatay was right to worry about illegal votes being counted.
But conservatives have always believed the Constitution gives the states, not Washington, the job of running elections. That principle does not change because we like the party in the White House. Two of the judges, one appointed by President Trump, asked hard questions, and the government did not have good answers. It could not say who handled its own list. It also waited until ballots were already in the mail to sue.
Scripture warns us about hearing only one side: "He that is first in his own cause seemeth just; but his neighbour cometh and searcheth him." The government's case sounded strong in its own filings. Under questioning, it did not hold up as well. A list that California says includes people born here is not good enough to set aside thousands of ballots about a week before Election Day.
This is the same problem I raised with the Justice Department's suit in Alaska, in DOJ Sues to Block Alaska Senate Certification if Sullivan Loses. Fight voter fraud with real evidence, in the right court, in good time. Do it that way and Americans of both parties will trust the result. Rush it, and the effort will mostly feed distrust.
