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.

The Trump administration sought a federal court order Thursday to force California to purge 20,000 people from its voter rolls over claims they are not U.S. citizens, a major development less than three weeks before the midterm elections.

The U.S. Department of Justice sued the state, asking a judge to validate its claims that the state is willfully allowing noncitizens to vote in the Nov. 3 elections. California law requires that ballots have already been sent to registered voters.

California Secretary of State Shirley Weber and Los Angeles County Registrar-Recorder/County Clerk Dean C. Logan on Wednesday declined to open a thumb drive the federal government sent them containing a list of suspected noncitizens registered to vote in California. 

Logan said the drive was unvetted and opening it would violate the office’s security protocols. 

The Justice Department’s complaint said the refusal to open the drive was a major obstacle to enforcing federal voting laws.

“By sending ballots to likely noncitizens despite the Federal Government notifying California of serious concerns, Defendants (collectively, California) have made it nearly impossible for the United States to investigate and enforce federal law,” the suit said. “This is a substantial drain on federal resources. In addition, when aliens illegally vote in elections, they dilute the votes of citizens and unduly influence who runs the Federal Government. That also undermines public faith in federal elections.”

The suit seeks a judicial order blocking the state from counting mail ballots sent to registered voters that the administration says are noncitizens.

California sends ballots to every registered voter in every election without distinguishing among state, local or federal elections, the suit says. Ballots for this year’s general election went out Oct. 1. 

Only citizens can vote in state and federal elections. San Francisco allows noncitizens to vote in some local elections. 

In Thursday’s complaint, the administration said the Department of Homeland Security had identified 20,000 noncitizens who were registered to vote in California. The department warned California “months ago” that noncitizens may be registered to vote in the state, which “made no serious attempt to” determine if that was true, according to the suit.

Many of the people the administration says are noncitizens and registered to vote live in Los Angeles County, the suit says.

Representatives for Logan and Weber did not immediately return messages seeking comment Thursday.

Motivation questioned

The suit omits efforts by the state over the past few months to work with the federal government to identify noncitizens on its voter rolls, David Becker, the executive director of the nonpartisan Center for Election Innovation & Research, said on a press call Thursday afternoon.

The administration estimated several months ago that 190,000 noncitizens were registered to vote in the state. State officials asked for the federal government’s methodology and for the names of the individuals. They did not receive a response, Becker said.

Instead, the DOJ blindsided California and Los Angeles County with a letter demanding voter files be removed just weeks from Election Day, Becker said. 

Becker suggested that the administration’s objective was not to deny noncitizens from voting, but to sow doubt about the election results. If the DOJ had a “legitimate concern” and was operating in good faith, it would have worked diligently starting at the beginning of last year, he said.

“I don’t know what their motivation is, but I can tell you what their motivation isn’t, because if they were seeking to work in good faith to clean up the voter list that they believed had issues, they would have done this months ago in a much different fashion,” he said. 

“It does raise questions as to whether or not the sole purpose of this is to set the stage for false claims about election theft after an election that the president might be worried his party was going to do poorly in.”

He added that the thumb drive was sent in an envelope that included a handwritten note with a password written on it, which is a serious red flag for cybersecurity experts.

“I don’t know how much you’re aware of the cybersecurity protocols in election offices,” he said. “Election offices do not just stick thumb drives into their technology — for very good reason.”