Nearly two hours of oral arguments just concluded in the California election case, and it looks very unlikely that the Trump administration is going to prevail in this early stage of the litigation.
In an unusual Sunday afternoon session conducted via Zoom, the 9th Circuit Court of Appeals weighed whether to order Los Angeles County to segregate and not yet count the mail-in ballots of alleged noncitizen voters from a dubious list of 20,000 voters compiled by the Trump administration.
In its multi-front attack on the midterm elections, the Trump administration is centering the Big Lie of the 2026 election: rampant noncitizen voting. If it prevails in the Los Angeles County case, it’s poised to force every other California county to verify the citizenship of voters on its list. The Trump DOJ has already threatened election officials in every California county with criminal prosecution if they fail to comply. This case is a critical test of whether the judicial branch will hold the line to protect free and fair elections.
Trump drew a favorable 9th Circuit panel, with two of his appointees and a Biden appointee. But the administration’s ask of the court at this stage is so far-fetched that two of the three judges on the panel — Mark J. Bennett (Trump) and Gabriel P. Sanchez (Biden) — gave no indication that they would side with the administration. Patrick J. Bumatay (Trump) repeatedly threw lifelines to DOJ lawyer Matthew Donnelly during the oral arguments and appeared more likely to side with the administration — but even he may have his limits.
Most of the oral arguments were focused on whether the appeals court even has jurisdiction to hear the appeal in large part because of how late in the game the Trump administration acted and how rushed it’s been to try to make this into an emergency that requires appeals court intervention.
The administration took the case to the 9th Circuit on the grounds that the district judge hadn’t acted within the three business hours the Trump DOJ unilaterally gave him to rule, which it argued amounted to a constructive denial — a deeply problematic position to try to defend.
“I don’t understand how we have jurisdiction,” Judge Bennett announced early in the proceeding.
The most likely path for the judges to take — which they discussed at some length toward the end of oral arguments — is to dismiss the appeal for lack of appellate jurisdiction. That would immediately return jurisdiction to the district court and allow it to proceed with Tuesday’s already-scheduled hearing on whether to grant the administration’s request for an injunction against Los Angeles County.
Such a quick disposition of the appeal would allow the case to proceed at the district court on a more usual but still very quick path that would eventually lead back to the 9th Circuit. Even Judge Bumatay, whose questions were very friendly to the administration and challenging of the state, might have trouble finding appellate jurisdiction in this odd posture in which the Trump administration has put itself and its case.
Clearly anticipating that the case will come back to them on the merits (versus on procedural grounds), probably within a matter of days, the judges devoted a significant portion of the oral arguments to shaping some of those merits arguments. In those exchanges, Judges Bennett and Sanchez seemed unpersuaded that the executive branch had the power to dictate election procedures to California
On two occasions, Judge Bennett read out loud from the Constitution’s Elections Clause as he pressed the DOJ’s Donnelly on the limits of executive branch power over California:
“The United States executive is unhappy with what they’re doing and doesn’t like the manner in which they have determined how they’re going to conduct the election. But it seems to me that under the Elections Clause they have the right to determine the manner of elections, including how to sort out noncitizens, and Congress has not directly changed what the legislature has adopted, which they had to right to do.”
That’s the case in a nutshell and it doesn’t bode well for the Trump administration’s chances on the merits when the case comes back up on appeal.
I’ll have more on this case tomorrow in Morning Memo.
