Key Points

  • The Ninth Circuit denied the United States' emergency motion for an injunction pending appeal that would have required California and Los Angeles County to segregate the mail ballots of about 20,000 people the federal government identified as likely noncitizens.
  • The per curiam majority held that 18 U.S.C. § 611, which criminalizes noncitizen voting in federal elections, does not clearly preempt California's statutory procedures for challenging ballots and voter eligibility under the Elections Clause.
  • The panel held that the requested relief would likely amount to systematic voter removal barred by the National Voter Registration Act's 90-day quiet period, and found no clear error in the district court's finding that the federal list was not shown to be reliable.
  • The panel held that irreparable harm, the balance of hardships, the public interest and the Purcell principle all weighed against court-ordered changes to ballot processing while the election was underway.
  • Judge Bumatay dissented, arguing that § 611 is an Elections Clause statute that preempts California's commingling of suspect ballots and that a narrow segregation order was warranted.

A federal appeals court on Oct. 30 refused to order California to set aside the mail ballots of roughly 20,000 voters whom the federal government had flagged as likely noncitizens, four days before the state's Nov. 3 midterm election.

A divided three-judge panel of the U.S. Court of Appeals for the Ninth Circuit denied the United States' emergency motion for an injunction pending appeal, an order that would have required California and Los Angeles County to segregate those ballots and verify the voters' citizenship before counting them. The panel of Judges Mark J. Bennett, Patrick J. Bumatay and Gabriel P. Sanchez issued a per curiam order, and Bumatay dissented.

The panel held that 18 U.S.C. § 611, the federal law that makes it a crime for noncitizens to vote in federal elections, does not clearly override California's own procedures for challenging a voter's eligibility. Those state procedures remain the only method for contesting the flagged ballots. "If the United States believes different procedures are necessary for vote-by-mail ballots, we believe it should take that suggestion to Congress, not the courts," the court wrote.

According to the order, U.S. Citizenship and Immigration Services and the Department of Homeland Security Investigations obtained California's voter roll over the summer and "curated a list of 'high-confidence' noncitizens." On Oct. 12 the government gave the list to Secretary of State Shirley Weber and County of Los Angeles Registrar-Recorder/County Clerk Dean C. Logan and asked them to sequester the ballots of everyone on it. The officials refused, "expressing doubt about the veracity and reliability of the list."

The United States sued on Oct. 15 in the U.S. District Court for the Central District of California, arguing that the Supremacy Clause barred the officials from mailing ballots to likely noncitizens and counting them. Groups including the League of United Latin American Citizens and the NAACP intervened on the state's side.

The same panel dismissed the government's first appeal on Oct. 26 for lack of jurisdiction. The district court then held a two-hour hearing on the government's request for a temporary restraining order and denied it on Oct. 28. This time the panel found the denial appealable because it was "tantamount to the denial of a preliminary injunction." The district court had appointed a special master to review the government's voter roll data and suggested another hearing in two weeks, "well after Election Day."

On the merits, the panel started with the Constitution's Elections Clause, which lets state legislatures set the "Times, Places and Manner" of congressional elections and lets Congress alter those rules. Congress displaces state election law only as far as it actually legislates, the court wrote. "Noticeably absent from the statute is an express preemption provision or any language setting forth regulations for how a state deals with citizenship challenges to vote-by-mail ballots," the panel wrote of § 611.

The court noted that California law, like federal law, bars noncitizens from voting, and that the state requires registrants to attest to citizenship under penalty of perjury. The panel called it "unclear (at best)" whether Congress meant § 611 to preempt anything, much less to force states to segregate ballots "based on the Department of Justice's unsubstantiated allegations that noncitizens may be voting." In a footnote, the panel said its holding was limited "in this case and under these particular facts."

The panel found an independent obstacle in the National Voter Registration Act, which bars states from systematically removing ineligible voters from the rolls within 90 days of a federal election. The government argued that the act governs registration, not ballot segregation. The panel said that argument "potentially fails to grasp the broader mechanics of California's election code," which requires officials to cancel a registration upon proof of ineligibility. The consequence, the court wrote, would be "not merely ballot segregation, but ultimately both the cancellation of the ballot and the removal of voters from the voting rolls."

The panel also relied on the district court's findings about the list itself. The district court found that the government "provided 'no error rates' or 'validation against a reliable benchmark'" and that it "remains unknown how Lexis Nexis performed its analysis" in linking names to Social Security numbers. The panel said the government had shown no clear error "given the conflicting evidence in the record."

On the remaining factors, the panel upheld the district court's finding, which credited a county technology official's declaration, that the needed system changes "cannot be completed safely and uniformly before Election Day" and could jeopardize the state's Dec. 11 certification deadline. The panel also invoked the Purcell principle, drawn from the Supreme Court's 2006 decision in Purcell v. Gonzalez, under which federal courts must not "alter the election rules on the eve of an election."

Bumatay, who also dissented from the panel's first ruling, wrote that the government sought "a modest remedy—stopping California from mixing the ballots of citizens and suspected noncitizens." That relief "would not cancel any vote but would allow time to verify the eligibility of suspected noncitizens," he wrote. He argued that § 611 is an exercise of Congress's Elections Clause power and that federal criminal laws often preempt contrary state laws. "California defined its federal electorate. Congress enforced it," he wrote.

Bumatay also criticized what he called "California's lax system for verifying citizenship," writing that Los Angeles County could give no evidence at oral argument that it independently verifies voters' citizenship. He cited a declaration from another county's registrar that segregating challenged ballots "is entirely possible and not catastrophic," which he said the district court "didn't even address." In a footnote, the majority said the district court reasonably credited the declaration of the county's Assistant Registrar of the Information Technology Bureau over "an elected Registrar from a different county."

"We should have let them try," Bumatay concluded.

In the district court, the judge suggested a further hearing to test the list's accuracy in the event the government adds names and seeks "indictment[s]" against people on it. California's deadline to certify the election results is Dec. 11.