President Donald Trump’s 11th-hour campaign to intervene in California’s vote counting encountered its first resistance from federal courts on Monday, with appellate judges ruling against the effort.

A three-judge panel of the 9th Circuit U.S. Court of Appeals ruled against a U.S. Department of Justice request for a court order requiring California election officials to segregate and not count the ballots of some 20,000 voters, who federal officials say are suspected noncitizens, until those voters can prove otherwise. The decision, issued Monday, came after rare oral arguments on Sunday.

Two of the three judges sharply questioned a Justice Department lawyer over the demand, as well as the timeline of the agency’s actions. A third judge appeared more sympathetic to the Trump administration’s arguments.

The oral arguments, held virtually, came after the Justice Department said a district court judge hadn’t ruled fast enough on its request for a temporary restraining order to require California officials to set aside the ballots of suspected noncitizens. 

In Monday’s 2-1 decision, the majority wrote that the appeals court lacked jurisdiction over the case because the DOJ “failed to allow the district court adequate opportunity to consider” the request.

One of the appellate judges emphasized on Sunday that the district court judge had swiftly scheduled a hearing, currently set for Tuesday, less than a week after receiving the case.

“I don’t see how we have jurisdiction,” said Judge Mark Bennett, a Trump appointee who often led the skeptical questioning of the DOJ.

Last-minute push

As Election Day approaches, the Trump administration is mounting a furious final bid to assert authority over state and local election officials. 

The Justice Department first demanded immediate action in a last-minute lawsuit that alleges ballots cast by alleged noncitizens in California risk diluting the votes of U.S. citizens. 

It then opened a new front on Friday, preemptively suing Alaska over the future certification of its U.S. Senate race. Democrats and voting rights groups filed a flurry of court papers over the weekend opposing the Alaska lawsuit.

Sunday’s oral arguments in the California case, which lasted nearly two hours, marked the first courtroom showdown in the Trump administration’s new round of preelection legal action. One or both lawsuits could be before the U.S. Supreme Court within days, depending on the speed of lower courts.

An ‘astronomical’ number of ballots

Justice Department attorney Matthew Donnelly told the three-judge panel that the DOJ decided to seek an emergency order after learning how many mail-in ballots election officials were already processing, at least several hundred thousand so far. 

He said the agency hadn’t been aware of what he called the “astronomical” number of ballots as he explained why the DOJ didn’t ask for a temporary restraining order until four days after it first sued California.

“Frankly, we did not appreciate the scale,” Donnelly said, though California is a universal vote-by-mail state that sends a ballot to all voters.

Seth Waxman, a lawyer for Los Angeles County Registrar-Recorder/County Clerk Dean Logan, told the court that Donnelly’s assertion was “absurd on its face.” Election officials in California have warned that complying with the Justice Department’s demands so close to Election Day could have catastrophic consequences. 

“The numbers are publicly available,” Waxman said.

Authority over elections

The U.S. Constitution’s Elections Clause places the responsibility for administering elections with the states, with Congress retaining the power to override state regulations. 

Donnelly clashed with Bennett over whether the legal basis for the Justice Department’s demands of California, a federal law that makes it a misdemeanor crime for noncitizens to vote in federal elections, represents an instance of Congress asserting its authority over elections.

Donnelly said the federal law preempts California’s action “here that frustrates its purpose” — in other words, the refusal of state and local officials to set aside the suspected noncitizen ballots. 

But Bennett said California law also bans noncitizen voting, and he argued that what Congress passed doesn’t directly change the rules state lawmakers adopted, which require voters to attest under penalty of perjury that they are qualified to vote.

‘An emergency of their own making’

The Trump administration has said the Department of Homeland Security compiled the list of 20,000 suspected noncitizens based on public California voter data it obtained. 

Judge Gabriel Sanchez, an appointee of President Joe Biden, questioned the reliability of the list, noting that federal officials initially told California this summer they believed the state had potentially more than 190,000 noncitizens on its rolls.

“Somehow the district court was supposed to resolve all this in a matter of hours by noon on October 22?” Sanchez said, referring to the deadline the Justice Department requested for a decision from the district court judge.

Samuel Siegel, a lawyer representing California Secretary of State Shirley Weber, a Democrat, told the appeals court the voter list the Trump administration obtained was “wildly outdated.” He said the 9th Circuit has nothing to decide because U.S. District Court Judge David Carter, an appointee of President Bill Clinton, has yet to rule.

“It is an emergency of their own making,” Siegel said of the Justice Department.

Sanchez and Bennett agreed. In a per curiam majority opinion, they wrote the “United States’s claimed emergency, at least in part, is a self-constructed one.”

Judge Patrick Bumatay, a Trump appointee and the only judge on the panel who at times appeared to agree with the Justice Department’s arguments, pushed Siegel on the consequences of not ordering California to set aside the ballots. Donnelly said repeatedly that once the ballots are processed, it becomes impossible to pull them out, even if it later becomes clear they were fraudulently cast.

“Without an injunction, you’ll never know, correct?” Bumatay asked Siegel, who responded that voters must affirm their citizenship.

Bumatay dissented from Monday’s opinion. He wrote that he would have granted the DOJ request.

“The question—does the federal government have the power to stop this potential attack on the integrity of our elections? Under both federal law and the Constitution, the answer must be ‘yes,’” Bumatay wrote.

Carter has promised to rule promptly after a Tuesday hearing on the Justice Department’s request for a temporary restraining order. A denial could prompt the DOJ to appeal again.

For more than a year, the U.S. Department of Energy has repeatedly extended the lifespan of a coal plant in West Olive, Michigan, arguing the power generated at the facility was needed to help address a national energy emergency.

However, a three-judge panel at the U.S. Court of Appeals for the District of Columbia, in a ruling issued Friday, said it was unpersuaded by the department’s justifications for keeping the J.H. Campbell Coal Plant online, determining that the department had exceeded the emergency authority granted by the Federal Power Act.

“There is no dispute that for almost a century states have exercised authority, preserved by the Federal Power Act, to regulate in-state power plants for the economic and environmental benefit of their citizens,” Judge Cornelia Pillard wrote for the panel. “It is the states — informed by federal, regional, and load-serving entities’ assessments of available supply and reliability needs — that bear the responsibility to plan for and avert reliability risks on an ongoing basis. To that end, states decide which generation resources must be built, expanded, reduced, or shut down.”

The panel ultimately vacated the order.

The Campbell plant’s owner, Consumers Energy, announced a plan to retire the facility in 2021. The Michigan Public Service Commission, which oversees energy companies within the state, and the Midcontinent Independent System Operator, the energy grid operator for the central United States, each signed off on the plant’s retirement, with MISO determining the move would not violate its reliability criteria.

“The Department’s position would empower it to pick its preferred power sources in Michigan — or, presumably, any other state — and order them to operate without regard to the multiple procedural and substantive constraints built into state reliability planning processes,” Pillard wrote, determining that the department’s emergency authority “is best read to apply where the Department identifies a risk of substantial harm from inadequate electricity supply that calls for immediate action by DOE in particular.”

In addition to the Campbell plant, the Trump Administration extended the operation of five other plants in Indiana, Pennsylvania, Colorado and Washington.

Retiring the Campbell plant was expected to save Mchigan residents $600 million by 2040. Consumers Energy’s quarterly report filed on June 30 notes that keeping the plant online has cost the company $259 million after factoring in the $239 million in revenue it received by selling power from the plant to MISO.

Consumers Energy Media Relations Specialist Brian Wheeler told Michigan Advance the company is reviewing the court’s ruling. 

“While that happens, we are continuing to comply with the current 90-day Department of Energy order that keeps the Campbell plant operating,” Wheeler said in an email. “Ultimately, we will follow the law and work to ensure that everyone who benefits from power from the Campbell plant across the Midwest pays their fair share.”

Consumers Energy is seeking to recover the cost of keeping the plant open from ratepayers in Michigan, as well as energy customers in Illinois, Indiana, Iowa, Kentucky, Minnesota, Missouri, Montana, North Dakota, South Dakota and Wisconsin.

Michigan Attorney General Dana Nessel, challenged the Department of Energy’s order and its subsequent extensions on behalf of the people of Michigan. Friday marked the first time a decision had been made on any of those challenges. 

“I am relieved that the court saw through this facade and threw out the DOE’s order that had zero basis in reality,” Nessel said in a statement. “My office has been fighting this unlawful political stunt at every turn, and this ruling proves what we have been saying all along: this administration does not get to invent fake emergencies to bypass the rule of law against the best interests of Michigan residents. We remain committed to fighting these nonsensical orders and protecting our ratepayers.”

Earthjustice, the Sierra Club, the Natural Resources Defense Council, Environmental Law and Policy Center, Clean Air Task Force and the Environmental Defense Fund also petitioned the court to set aside the order.

In the court’s ruling, Pillard notes that the U.S. Department of Energy order it reviewed had already expired, as each renewal has extended the plant’s lifespan by 90 days.

Earthjustice attorney Michael Lenoff, in an interview with the Advance, called on the department to follow the law and rescind its most recent order extending the plant’s operations through Nov. 14.

“If it doesn’t and continues to issue these unlawful emergency orders, we will challenge them in court,” Lenoff said.