California ballot dispute sees ruling flip-flops as voting happens

As voting takes place for the Nov. 3 midterm election, efforts by the Trump administration to obtain cooperation from California election officials to separate potential non-citizen votes from legitimate votes in California were narrowly upheld by the full 9th U.S. Circuit Court of Appeals. In a closely related lawsuit, the U.S. Supreme Court declined on Nov. 2 to review another aspect of the federal-state confrontation over possible non-citizen voting. 

The 9th Circuit ruled 6-5 in favor of the government on Nov. 3, the same day as the midterm elections, which are the subject of the case under consideration, SEIU et al. v. Department of Justice. The majority of the court voted to reinstate an earlier decision from a 3-judge panel of the court, which allowed the DOJ to tell California election officials that they could be subject to prosecution for not following their directions about separating out ballots suspected of being illegal.

To understand the two closely related cases, one must go back to Oct. 13 when the federal government sent letters to California election officials that said it had identified 20,000 likely non-citizen voters on its rolls. State officials were given 48 hours to respond, and after not receiving a satisfactory reply, the Department of Justice (DOJ) sued the state on Oct. 15, asking that the ballots be sequestered and warning officials they could be prosecuted for not enforcing federal voting laws.

>> DOJ sues California over alleged non-citizens on voter rolls <<

California Attorney General Rob Bonta argued in a court filing responding to the suit that the federal data from the SAVE database was unreliable and that the move was a political stunt. Don Palmer, a Heritage Foundation senior legal fellow, told Zeale News at the time that California’s objection to the federal evidence is “hypocritical and nonsensical,” noting that the state itself uses the federal SAVE verification system.

California automatically mails ballots to all registered voters, regardless of whether voters requested ballots, which the DOJ argued would allow non-citizens registered to vote to cast ballots in violation of federal law. The DOJ also noted that California does not verify the citizenship of those registering to vote, instead simply asking registrants to attest that they are U.S. citizens.

In response to the DOJ’s action, labor unions and civil rights groups (SEIU, et al. v. DOJ) filed a lawsuit focused on the pressure put on election officials to follow the Trump administration’s direction for handling the suspect ballots.

What ensued over the next week was a rapid-fire exercise in judicial ping pong.  

On Oct. 30, U.S. District Judge Trina Thompson issued a temporary restraining order barring the government from making further requests that states sequester ballots and ordering it to refrain from “threats” of prosecution.

The case was then taken up on appeal by a three-judge 9th Circuit panel, which voted 2–1 on Nov. 2 to grant the government’s motion to stay Thompson’s restraining order. Judge Carlos Bea wrote for the majority that the government “has established a likelihood of success on the merits” and that the district court was “likely wrong.” Chief Judge Mary Murguia, dissenting, wrote that the ruling and the court’s Oct. 30 decision against the administration in the California case “cannot be reconciled.”

Then, late on the night of Nov. 2, a majority of the court’s non-recused active judges voted to rehear the case en banc, and the panel’s order from earlier in the day was vacated, according to a short order issued by Murguia. 

With voting in California already underway, the full bench of the 9th Circuit’s 11 judges met on Nov. 3 and voted to reinstate the ruling from the 3-judge panel issued the day before. 

>> ANALYSIS | How non-citizen voting could shape the midterm elections <<

The other case considered Nov. 2 is closely tied to SEIU v. DOJ and is called United States v. California. This case concerns the federal government’s request that the ballots of any of the 20,000 likely non-citizens who voted be sequestered until their citizenship status can be definitively determined. 

U.S. District Judge David Carter denied the request Oct. 28, concluding that the federal government lacked standing and a cause of action and was unlikely to show that federal law overrides California’s handling of the ballots. A 9th Circuit panel denied relief Oct. 30, finding the government unlikely to succeed and not irreparably harmed, citing the principle that courts should avoid changing election rules close to an election. Judge Patrick Bumatay dissented.

On Nov. 2, the U.S. Supreme Court denied the department’s request for an injunction requiring the state to set aside mail ballots from more than 20,000 alleged non-citizens. In its application, filed Nov. 2, the department argued that once ballots are commingled, “there is no way to get the challenged ballots back” and that sequestering ballots is something that California and other states foresee in their laws.