A 9th Circuit panel, the federal appeals court for California and eight other western states, ruled 2-1 on Monday 26 October that it lacked jurisdiction over the Department of Justice (DOJ) appeal in its California ballots case12. DOJ wants California to set aside mail ballots from more than 20,000 listed voters, a demand it renewed last week. The panel sent the case back to district judge David O. Carter, who had not yet ruled.
DOJ appealed because Carter did not rule by a noon deadline on 22 October that DOJ itself had set3. Judge Mark Bennett wrote that he would also have refused on the merits: federal law on voting by non-citizens does not override California's authority to run its elections. The panel's unsigned (per curiam) order called DOJ's emergency, at least in part, "a self-constructed one". Judge Gabriel Sanchez wrote that the order would "usher in electoral chaos"4.
Judge Patrick Bumatay dissented: "California's actions must be preempted", that is, overridden by federal law. DOJ's case is that ineligible votes cancel lawful ones; the panel majority faulted it for suing less than three weeks before polling day5. Carter is due to hear DOJ's motion at 4pm Eastern time on Tuesday 27 October6.
