The Left doesn’t usually get hit by the courts. But times are changing.
Now a devastating court order made Gavin Newsom go pale as a ghost.
With Election Day days away, one of the biggest election fights of the cycle has landed in a federal appeals court. The Ninth Circuit has ordered California to respond by noon Saturday to an emergency request from the Justice Department involving roughly 20,000 mail-in ballots that were sent to people the government says are noncitizens registered to vote.
The Justice Department filed the request late Friday, and the appeals court issued its order the same night. The order is narrow. It requires California to respond. It does not itself direct officials to separate any ballots, and no court has yet ordered California to set aside a single one. But it keeps the case moving at a time when every hour counts.
The government’s claim is stark. The Justice Department says it has identified more than 20,000 people it calls “likely” noncitizens who are on California’s voter rolls, and that they were mailed ballots like every other registered voter in the state. Under California law, every registered voter is mailed a ballot. First Assistant U.S. Attorney Bill Essayli, who leads the Central District of California, has said the department has verified the figure.
Essayli has tried to portray the ask as modest. “We’re not asking California to take any drastic steps other than to sequester the ballots from the suspected noncitizens,” he said in an interview. In earlier letters to California officials, the department asked them to “segregate—not cancel” ballots from anyone whose citizenship they cannot verify. The idea is to set the ballots aside while eligibility is reviewed, not to throw them out.
The department’s filing leaves no doubt about the urgency. “This is an emergency,” it states, in a document signed by Attorney General Todd Blanche and Essayli. The department says every day that passes means more ballots are processed, and once a ballot is separated from its identifying envelope, tracing it back to the voter becomes impossible.
That is the heart of the timing problem. California officials say that once a mail ballot’s signature has been verified, the ballot is separated from its identifying envelope and counted with the others. The Justice Department sued California and Los Angeles County on Oct. 15, roughly two weeks after ballots went out, and court records show Los Angeles County alone has already processed 331,000 ballots.
California officials have rejected the demands. They argue in court filings that county election offices lack both the authority and the access to federal records needed to verify citizenship, and that separating ballots tied to the DOJ’s list is impossible once they have been processed. They also question how reliable the list is. The department sent letters to 57 of California’s 58 counties, and it has warned that officials who count the flagged ballots could face criminal charges.
Gov. Gavin Newsom has defended the integrity of California’s elections and maintains the state is following the law. Essayli has accused California of allowing noncitizens onto its voter rolls because of what he describes as inadequate citizenship verification.
Critics have raised serious objections that deserve a fair hearing. David Becker, executive director of the nonpartisan Center for Election Innovation & Research, said, “One must question why the Justice Department would violate its own rules about investigating elections so close to Election Day, particularly when their past claims have been full of errors.” There is a real risk that eligible citizens could be mistakenly flagged and have their ballots delayed.
The legal history is also complicated. In January, a district court sided with California in a separate dispute and dismissed the case, calling the government’s request “unprecedented and illegal.” The Justice Department appealed, and the litigation is ongoing. The department also tried to bypass the district judge handling the current case by filing its emergency request directly with the Ninth Circuit after the judge did not rule on its deadline.
Here is where honest conservatives and honest liberals should be able to agree. It is a federal crime for noncitizens to vote in U.S. elections, and a Justice Department spokesperson said it is asking California to ensure that is not occurring. Every American has an interest in elections in which only eligible citizens vote, and a state that mails a ballot to every name on its rolls has an obligation to make sure those names belong there.
It should be equally uncontroversial that eligible voters should not be disenfranchised by a list that may contain errors, and that the courts, not agency press releases, are the place to resolve such disputes. The word “likely” in the department’s description is doing a lot of work, and the public deserves to see the evidence behind it.
The best outcome would be a ruling that protects both principles: a process to verify the flagged names quickly, a way to preserve the ability to identify disputed ballots, and a guarantee that any eligible citizen who was mistakenly flagged still has their vote counted. Whether the court can deliver that in the days that remain is the open question.
For everyday voters, the practical lesson is to check your registration, vote early if you can and make sure your signature and ballot are in order. For officials in both parties, the lesson is that the time to fix questions about voter rolls is long before ballots go out, not in the final days of a campaign when the stakes are highest and the clock is running out.
