(Corrects paragraph 4 to say quote appears in concurring opinion, not majority opinion)
By Luc Cohen and Jan Wolfe
Oct 26 (Reuters) – A US appeals court on Monday ruled against President Donald Trump’s administration in a major voting dispute ahead of the midterm elections, denying a request to block California from counting mail ballots from people on a list of more than 20,000 registered voters the federal government alleges are likely noncitizens.
The decision by the San Francisco-based 9th US Circuit Court of Appeals marked the latest setback in Trump’s efforts to assert a greater federal role in overseeing elections in the run-up to the November 3 midterms in which his fellow Republicans are fighting to retain control of Congress.
The majority decision said the Justice Department had failed to give a lower court judge an adequate opportunity to consider the case, and therefore it would be premature for the appeals court to weigh in.
Circuit Judge Gabriel Sanchez, one of the two judges in the majority, wrote in a concurring opinion that the federal government “asks the federal court to dictate to a state legislature a matter squarely within the state’s traditional domain, upending the state’s policies in this regard and inviting disorder and confusion for voters and election officials alike.”
The lawsuit was an escalation in the Trump administration’s pressure on state election officials over alleged noncitizen voting and a rare intervention by the Justice Department in the voting process weeks before an election.
The California lawsuit was the first time the Trump administration sought to prevent votes from being counted by a state, though it did not indicate how many of the 20,000 people allegedly registered to vote in California had actually submitted a mail ballot.
Justice Department officials said on October 19 that the 20,000 people included 28 who had been criminally charged with illegally voting.
California is the most populous US state and a Democratic stronghold. It has more seats in the House of Representatives — 52 — than any other state. Democrats are seeking to regain control of the House from Trump’s fellow Republicans in the midterms.
Trump has made California a focal point of his sweeping immigration crackdown since returning to the White House, accusing it of undermining public safety through its so-called “sanctuary state” policies that limit cooperation with federal immigration enforcement.
Trump has long asserted that California’s immigration policies have facilitated voter fraud.
All available evidence indicates that ineligible voting, including noncitizen voting, is exceedingly rare. A Reuters investigation published in July found just 129 cases in which noncitizens were federally charged with voting illegally; many appeared to stem from voter confusion or administrative errors, rather than intentional fraud.
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.
California says the state’s safeguards against noncitizen voting are robust, and asserted in a court filing that the Justice Department’s assertions relied on “suspect data.”
“At best, this litigation is a reckless political stunt,” lawyers for California Secretary of State Shirley Weber said in an October 20 court filing. “At worst, it threatens to disenfranchise thousands of Californians this election.”
Voting rights activists have expressed concern that the Trump administration’s methods for scrutinizing state voter lists to identify noncitizens risk wrongly flagging naturalized US citizens for removal from the rolls.
The Justice Department has told election officials in all 50 states that they could face criminal prosecution if they knowingly allowed noncitizens to remain on their rolls or cast ballots. It has sued 30 states and Washington, DC, for refusing to provide complete voter rolls including voters’ sensitive personal data, but has lost 26 of those cases so far without winning one.
(Reporting by Jan Wolfe and Luc Cohen; Editing by Will Dunham and Rosalba O’Brien)
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