A federal appeals court on Friday denied the Justice Department’s emergency request to order California to set aside mail ballots from about 20,000 alleged “likely noncitizens,” finding the government hadn’t shown it was clearly entitled to the extraordinary relief days before the midterm election.
In a per curiam order, a Ninth Circuit panel said the district court did not abuse its discretion in denying a temporary restraining order. The panel assumed the United States has standing and a cause of action and held it has jurisdiction because the TRO denial was tantamount to denying a preliminary injunction.
On the merits, the court said nothing in 18 U.S.C. § 611, which criminalizes voting by noncitizens, preempts California’s election procedures. The statute has no express preemption provision and doesn’t regulate how states handle citizenship challenges to mail ballots, nor does it authorize DOJ to intervene in an ongoing state election. If DOJ believes different procedures are needed, the panel said, it should “take that suggestion to Congress, not the courts.” The panel limited its holding, saying it did not decide that § 611 could never preempt state law.
The court also said the request could run afoul of the National Voter Registration Act’s 90-day ban on systematic removals, since ballot segregation could lead to cancellation and removal. It noted the district court found DOJ provided no error rates and no detail on how a data vendor matched names. It also found DOJ unlikely to show irreparable harm, and said the balance of hardships and public interest favored California. The Purcell principle, it said, counsels against late changes, quoting the district court that the change “would provoke catastrophic change, upending the administration of the election.”
Judge Patrick Bumatay, a Trump appointee, dissented. He argued the government met the requirements for an injunction, that § 611 is an Elections Clause statute that can preempt state action, and that a narrow order to stop commingling suspected ballots was warranted. “We should have let them try,” he wrote.
This comes as the Justice Department is ramping up its threats against state voting officials.