Here’s what should be a simple question: Should people who aren’t citizens vote in American elections? The answer is no. But watching the Ninth Circuit tie itself in knots over the Trump administration’s emergency request to set aside roughly 20,000 California mail ballots tied to suspected noncitizens, you’d think we were debating quantum physics.
The hearing stretched nearly two hours on Sunday. Three judges peppered Justice Department attorneys with questions about jurisdiction, timing, and the Constitution’s Elections Clause. Meanwhile, California officials sat back and argued the court shouldn’t even intervene yet because the lower court hasn’t ruled. Classic delay tactic. The midterm votes are being counted right now, by the way. Hundreds of thousands of ballots tabulated each day while lawyers debate whether courts have the right jurisdiction to address whether noncitizens are voting.
You know what’s remarkable about this whole mess? The DOJ filed suit on October 15, about two weeks after California already started mailing ballots. That timing alone tells you something about how seriously state officials take election integrity when it doesn’t align with their political interests. Governor Gavin Newsom’s administration has fought tooth and nail against basic verification measures that most Americans would consider common sense.
Circuit Judge Mark Bennett, a Trump appointee no less, questioned whether the requested injunction conflicts with the Elections Clause. He asked how the court could issue an injunction “entirely inconsistent with the law that the California legislature has adopted.” Fair procedural question, I suppose. But let’s be honest about what California’s legislature has adopted: a system so loose with verification that 20,000 ballots can go out to suspected noncitizens and the state’s response is essentially to shrug and say the courts should stay out of it.
Judge Gabriel Sanchez, appointed by Biden, wondered why the Ninth Circuit should weigh in when District Judge David Carter hasn’t ruled yet and has a hearing scheduled for Tuesday. Perfectly reasonable from a procedural standpoint. Perfectly useless when ballots are being counted in real time and any remedy after the fact becomes exponentially more complicated. This is the problem with treating elections like ordinary civil litigation where you can unscramble eggs later if needed.
The only judge who seemed focused on the actual substance was Patrick Bumatay, another Trump appointee. He pressed California on how it handles challenges involving suspected ineligible voters. That’s the question that matters. Not whether the right court at the right level at the right time is considering the right procedural posture. But whether California has a functioning system to prevent noncitizens from voting.
The Justice Department wants election officials to set those 20,000 ballots aside while eligibility gets reviewed rather than processing them alongside legitimate votes. Is that really too much to ask? We’re not talking about throwing ballots away. We’re talking about basic verification before counting votes cast by people the federal government has reason to believe aren’t eligible to vote in the first place.
California’s entire defense rests on procedural objections. They don’t stand up and say these people are definitely citizens and the DOJ is wrong. They argue about timing and jurisdiction and whether the appeals court should wait for the district court. It’s like watching someone accused of stealing a car argue about whether the cop who pulled them over had the right colored uniform.
The Elections Clause argument is particularly rich. Yes, state legislatures have authority over the manner of congressional elections. But that authority doesn’t extend to letting noncitizens vote any more than it extends to letting people vote twice or letting dead people vote. There are still federal constitutional requirements about who gets to participate in elections. Individual states don’t get to redefine citizenship or voting eligibility just because they control election procedures.
Think about what this case represents beyond the immediate 20,000 ballots. It’s a window into how completely broken our election integrity systems have become in states controlled by officials who view verification measures as voter suppression. California mailed ballots to people on a list the DOJ suspects are noncitizens. When confronted, the state’s response isn’t to verify citizenship. It’s to hide behind process and delay.
The federal government asked for an immediate ruling. That request will probably get denied or delayed because courts hate being rushed, even when the entire point of an emergency motion is that time matters. By the time this works through the system, those 20,000 votes will be counted and mixed with legitimate ballots. Then California will argue you can’t separate them out without compromising ballot secrecy. Convenient how that works.
This isn’t complicated stuff. Every other developed democracy requires voter ID and citizenship verification. Mexico requires photo ID to vote. Canada requires proof of identity and address. European countries have registration systems tied to citizenship status. But in California, asking to verify that voters are actually citizens before counting their ballots is treated like you’re proposing poll taxes and literacy tests.
The hearing ended without a ruling. The judges will deliberate and issue an opinion eventually, probably after it matters. Meanwhile, election officials keep counting ballots. The DOJ sought emergency relief because District Judge Carter didn’t rule by their requested deadline. Now they’re asking the Ninth Circuit to act while Carter still has a hearing scheduled. It’s a mess of competing timelines and overlapping jurisdictions, all while the actual votes get tabulated.
What gets lost in the procedural morass is the basic principle at stake. American elections should be decided by American citizens. Not by people who happen to be physically present in America but haven’t taken the legal steps to become citizens. That’s not xenophobia or voter suppression. It’s just basic civic logic that every functioning democracy recognizes.
California won’t fix this problem voluntarily. The state’s political leadership benefits from loose verification and maximized ballot distribution regardless of eligibility questions. Federal courts are the only check on states that treat election integrity as an inconvenient barrier to their preferred electoral outcomes. But when those courts get bogged down in jurisdictional questions and procedural timing, the check becomes meaningless.
The Ninth Circuit will rule eventually. Maybe they’ll side with the DOJ. Maybe they’ll punt on jurisdiction. Either way, this case exposes how vulnerable our election systems remain to the most basic integrity failures. Twenty thousand suspected noncitizens got ballots in California. That number should be zero. Until it is, we’re not serious about election security no matter how much we talk about defending democracy.
Related: Chicago’s 12-Language Ballot System Is Solving a Problem That Doesn’t Exist