Dem
53
Ties
3
GOP
44
Last week, the Department of Justice sued California and state and local elections officials alleging that they (the feds) had a list of people, the origin of which and the methodology used they refused to disclose, who "may" be ineligible to vote. The DoJ admitted that they didn't know whether these people are eligible voters, whether they are registered to vote, whether any of them have tried to vote, or even whether some of the people listed share the same name with someone else who is eligible to vote (which was the case with Omar Muñoz, who was dragged out of his home and arrested, and whose son shares his name, is a U.S. citizen and eligible to vote). Nevertheless, the feds demanded that California drop everything, in the middle of the election and while ballots are being received and processed, and find and segregate ballots with names matching those on the list until they can be confirmed as eligible voters. If you're thinking that this is an insane and illegal request, you would be right.
It seems that a panel on the Ninth Circuit Court of Appeals agrees. But wait, why is an appellate court weighing in before the district court? Excellent question. In addition to making this crazy demand, DoJ lawyers also demanded that the district court judge rule on their application for a temporary restraining order within 15 hours. Instead, the judge set a hearing for October 27. As we noted last week, when they didn't get their way, the DoJ ran to the Ninth Circuit to get them to immediately issue a temporary restraining order (TRO). Instead of immediately telling the DoJ to pound sand, strangely, a 3-judge panel scheduled an oral argument on a Sunday afternoon to hear the government's claims. And THEN they told the feds to pound sand.
In a 2-1 ruling, the Court declined to rule on the government's TRO application before the district court, and dismissed the appeal as premature. In addition, the Court also weighed in on the substance of the case. The judges first pointed out that this is an "emergency" of the DoJ's own making. It complained back in July about California's voter rolls, and had alleged then that noncitizens were registered, but ignored election officials who questioned the veracity of the feds' list. And California's election laws that require ballots to be mailed to all voters, and the timelines associated with processing returned ballots, are not new. Nevertheless, the feds chose to bring this suit on October 15, well after ballots were being processed, and didn't initially request either a TRO or a preliminary injunction, belying their belated claims of exigency. The courts will not fix stupid.
In a concurrence, Circuit Judge Mark J. Bennett, a Donald Trump appointee, wrote that he would also deny relief to the DoJ on the merits, or lack thereof, of the case. The lists of supposedly ineligible voters, which were created by U.S. Customs and Immigration Service (USCIS) and Homeland Security Investigations (HSI) are highly suspect and unreliable, as even the feds admit, because they need California officials to ultimately confirm whether the list is worth the paper it's printed on. And California is under no obligation to babysit the feds and reassure them that it knows what it's doing. That's because the Elections Clause of the Constitution gives that enforcement role to the states. Congress has some authority here, but has not usurped the states' role in running elections or removing ineligible voters from the voter rolls. Judge Bennett also notes that "granting Plaintiff its requested relief would result in disenfranchisement, and worse, could jeopardize the County's entire election."
Circuit Judge Gabriel Sanchez, a Biden appointee, also wrote a separate concurrence to warn that "the proposed injunction would transform California's election rules for an election that is already underway and would cause widespread confusion among voters and election officials, divert election administration resources, and usher in electoral chaos." Finally, Circuit Judge Patrick Bumatay, a Trump appointee, dissented and, assuming the accuracy of the feds' list, claimed that noncitizens were voting and that was enough for the feds to step in, even at this late stage, per the Supremacy Clause.
The case goes back to the district court, which held a hearing on the TRO application on Tuesday. The judge apparently appointed a special master to look into the process the DoJ used to identify suspected noncitizen voters. He also admonished the government attorneys: "This court thinks it would be wise that any threats to state or local officials should cease immediately." There was a time when that kind of rebuke would have been unthinkable. The judge promised to rule promptly. (L)