The Justice Department asked a federal appeals court on Thursday to intervene in its lawsuit seeking to block California from counting more than 20,000 mail-in ballots — taking the extraordinary step of appealing before the trial judge has even ruled.
DOJ lawyers asked the 9th U.S. Circuit Court of Appeals to get involved after U.S. District Judge David Carter did not rule by Thursday afternoon, as the department had requested. The department interpreted Carter’s silence as a “constructive denial” of its request for an emergency order to stop California from counting ballots from voters the administration says are likely not U.S. citizens.
Carter has scheduled a hearing for next week to consider the request. The unusual maneuver — appealing a non-ruling — underscores how aggressively the administration is pushing its election litigation with the November 3 midterms less than two weeks away, according to Reuters.
What the lawsuit seeks
The department sued California, Secretary of State Shirley Weber and Los Angeles County Registrar Dean Logan about a week ago, seeking to halt the counting of ballots belonging to more than 20,000 people federal agencies flagged as likely noncitizens until their citizenship can be verified.
California and Los Angeles County have sharply disputed the premise and asked Carter to dismiss the lawsuit entirely. They argue the Justice Department lacks standing and has no legal authority to use 18 U.S.C. § 611 — a criminal statute barring noncitizens from voting in federal elections — to force state officials to change how they administer and count ballots.
A crowded legal calendar
The case is being watched nationally as the administration seeks greater control over the midterms that will decide control of Congress. It arrived the same week a federal judge blocked most DHS election-related field operations in nine states, and as Attorney General Todd Blanche declined to rule out Justice Department involvement in state certification fights.
Election officials in California say there is no evidence of widespread noncitizen voting, and the state’s registrar has acknowledged it has no independent way to verify the citizenship of the flagged voters. The appeals court’s response could come within days.
