LOS ANGELES — California has until noon Saturday to answer the federal government in a fast-moving fight over whether about 20,000 mail ballots should be pulled aside before the Nov. 3 midterm election, after the Ninth U.S. Circuit Court of Appeals issued an order late Friday.
The Justice Department went to the appeals court because U.S. District Judge David Carter had not acted on its request by the date the department wanted. Federal lawyers want election officials to hold back ballots linked to people on a federal list of suspected noncitizens until each person can be checked, instead of counting them with everyone else. Carter still has a hearing on the case set for Tuesday, and it is not clear whether the appeals panel will act first.
The underlying lawsuit, brought by the U.S. attorney office in Los Angeles, was filed Oct. 15, about two weeks after the state started sending out mail ballots.
State election officials have pushed back in court papers. They say county offices have neither the legal power nor the federal records needed to confirm anyone is a citizen. They also say many ballots cannot be pulled back at all, because once a signature checks out the ballot is removed from its envelope and mixed in with the rest. Court records show Los Angeles County alone has already run 331,000 ballots through that process.
The department widened the dispute on Friday by mailing letters to 57 of the state 58 counties, after Los Angeles County got a similar notice the week before. First Assistant U.S. Attorney Bill Essayli gave the counties 48 hours to agree to work with federal justice and homeland security officials on sorting citizens from noncitizens on the lists. One county list ran to 1,133 names.
For anyone whose status cannot be confirmed, the letters ask counties to set the ballot aside rather than cancel it, and they warn that knowingly helping a noncitizen vote in a federal race is a crime.
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