By Jan Wolfe
Oct 25 (Reuters) – A federal appeals court on Sunday appeared skeptical of a lawsuit filed by President Donald Trump’s administration that seeks to force California officials to set aside thousands of mail-in ballots the administration says were sent to non-citizens ahead of midterm elections.
During a rare weekend oral argument, two judges on a three-judge panel of the 9th US Circuit Court of Appeals sharply questioned a Justice Department lawyer about the lawsuit, a high-profile effort by the Trump administration to boost the federal government’s role in elections ahead of the November 3 midterms.
The Republican Party is locked in a tight battle to retain control of both houses of Congress.
Trump’s Justice Department has warned election officials across California that they could be targets of federal scrutiny if they refuse to help identify suspected non-citizens on voter rolls. It has distributed a list of 20,000 people it says are likely aliens registered to vote in the state, a Democratic stronghold.
The Justice Department filed its lawsuit on October 15 in federal court in Los Angeles. The lawsuit asked a federal judge to order California to separate any ballots it received from people on the administration’s list from the rest of the ballots, and not to count them until it had verified that the people who cast the ballots were citizens.
The Justice Department filed an emergency motion with the 9th Circuit to expedite the case.
Circuit Judge Mark Bennett, a Trump-appointed judge, said during Sunday’s oral argument that the lawsuit cannot be reconciled with a provision of the US Constitution known as the Elections Clause, which gives state officials authority to set election processes.
“It seems to me that you want us to issue an injunction that is entirely inconsistent with the law that the California legislature has adopted pursuant to the Elections Clause,” Bennett told Justice Department attorney Matthew Donnelly. “How can we do that?”
Donnelly responded that California’s actions are interfering with a federal criminal statute that prohibits non-citizens from voting.
Bennett rejected that argument, saying the Constitution does not authorize the relief the Justice Department is seeking in court.
(Reporting by Jan Wolfe; Editing by Edmund Klamann and Noeleen Walder)
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