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.

After the U.S. Department of Justice sued California over its refusal to remove voters the federal government alleges are noncitizens, voting rights advocates fear the Trump administration is violating a court order blocking it from rooting out noncitizens with states’ voter data.

U.S. District Judge Sparkle Sooknanan on Oct. 9 ruled against the Justice Department’s year-long project to obtain state’s unredacted voter rolls, which include sensitive personal data, and share them with the Department of Homeland Security to identify possible noncitizens. The DOJ on Friday said it plans to appeal the decision.

In letters sent on Oct. 13, the Justice Department gave California officials 48 hours to review and remove a list of some 20,000 registered voters that the Trump administration believes are noncitizens. 

Many are concentrated in the Los Angeles area, and state and local elections officials both refused to act on the list. The DOJ immediately sued after its deadline passed on Thursday.

The Justice Department’s lawsuit, coming less than three weeks before Election Day and with voting underway in California, amounts to the latest development in President Donald Trump’s efforts to assert authority over elections, which under the U.S. Constitution are administered by the states. Trump faces a deluge of investigations and pushback if Democrats retake one or both chambers of Congress in November.

Democrats and voting rights groups have previously raised alarms about the possibility of the Trump administration attempting to interfere with voting. For some, the legal action against California only exacerbates their concerns. 

Letter sent, hearing requested

On Thursday, several Democratic senators wrote to U.S. Attorney General Todd Blanche to demand that the DOJ confirm it won’t seize ballots or other election materials.

The watchdog groups Common Cause and Citizens for Responsibility and Ethics in Washington, or CREW, which represents voters who sued to block the DOJ’s voter data sharing, have asked Sooknanan to hold a hearing to look into whether the Trump administration’s actions violate her order. They said the DOJ has adopted an “exceedingly narrow view” of her decision.

“By attempting to superintend voter roll list maintenance and prohibit registered voters from exercising the franchise without adequate consideration of the reliability of the underlying data, DOJ’s October 13 letters and the actions described in the California (lawsuit) appear to implicate — and perhaps outright violate” Sooknanan’s order, lawyers for the groups wrote in a court filing.

On Friday, Sooknanan ordered the Justice Department to respond to the request for a hearing in District of Columbia federal court by Monday.

Email exchange

Common Cause and CREW filed in court a late Thursday email exchange with Christian Dibblee, a Justice Department trial attorney, in which Dibblee writes that Homeland Security obtained a publicly available voter roll of California voters — as opposed to the full, unredacted roll that DOJ has sued states over — and that DHS didn’t use the SAVE system to identify possible noncitizens. 

SAVE, a computer system operated by DHS, combs through government databases to verify citizenship, but critics point to examples of the program falsely flagging U.S. citizens. The U.S. Supreme Court in September ruled that states could continue accessing SAVE ahead of the midterm elections, but most states are currently prohibited from conducting mass purges of voters because it’s too close to the election.

Sooknanan’s order “does not extend to using other methods, nor does it prohibit taking enforcement actions based on those other methods,” Dibblee wrote, adding that Homeland Security also wasn’t a party to the lawsuit challenging the DOJ’s voter roll effort.

The Justice Department’s lawsuit against California offers a broad overview, but few specifics, of how Homeland Security compiled its list of suspected noncitizens. It says that Immigration and Customs Enforcement, or ICE, compares “information about voter rolls” with “its internal data” to identify possible noncitizens. Additional investigative steps, not described, are used to assign a confidence level — low, medium or high — to each match.

ICE then connects high confidence matches with an “alien number” and those individuals are compared against internal records regarding naturalization and parental citizenship. Records from the State Department and Social Security Administration are also reviewed, the DOJ says in its lawsuit.

Individuals that ICE still believes to be noncitizens are then sent to Homeland Security Investigations, a sub-agency of ICE, according to the Justice Department. HSI conducts an “analytical data enrichment process” before sending data to HSI criminal investigators in the field.

In a statement Friday, DHS said it uses multiple data sources, from both government and commercial third-party sources, to supplement public information.

Mullin slams ‘unlawful voting’ 

In a Thursday statement, Homeland Security Secretary Markwayne Mullin called the number of alleged noncitizens registered to vote in California “completely unacceptable.” He said even one noncitizen vote cancels out the ballot of a U.S. citizen and undermines elections.

“DHS is committed to identifying unlawful voting, protecting the integrity of federal elections, and ensuring that only eligible American citizens elect America’s leaders,” Mullin said.

Democrats and voting rights experts have questioned the Justice Department’s decision to file the lawsuit with the election underway. The DOJ previously lost a lawsuit seeking to force California to turn over its unredacted voter roll — one of 23 similar lawsuits over state voter data that the Trump administration has lost.

The Trump administration’s efforts to identify large numbers of noncitizen voters have, up to this point, also fallen short of its own standards. Over the summer, the federal government claimed that California had upwards of 190,000 noncitizens on its voter roll. 

By contrast, Thursday’s lawsuit alleges only roughly 20,000 noncitizen voters — about 0.08% of the nearly 23.2 million registered voters in California.

DHS said Friday that 190,000 remains the number of potential noncitizen voters but that 20,000 represents a subset who have gone through a manual verification process so far.

“Every count, recount, hand count, lawsuit, and audit has found that there’s no widespread voter fraud in the U.S.,” California Attorney General Rob Bonta, a Democrat, wrote on social media. “The Trump Admin’s last-minute demands are meritless, and we look forward to making our case in court.”