My fellow Californians, let us begin with an intelligence test.
Our great state has been voting since early October. Folks have been mailing in their ballots, dropping them off at collection sites and even showing up at in-person centers.
So raise your hand if you know — or even just assume — elections officials have been doing something with those ballots as they arrive, other than just throwing them in a pile.
Congratulations, hand-raisers. You are now officially smarter than the entire U.S. Department of Justice. Or at least more honest.
On Sunday, the lawyers for the DOJ managed to get a three-judge panel of the Court of Appeals for the 9th Circuit to convene a rare emergency hearing because, OMG, people are actually voting and California is processing ballots!
Who could have possibly known?
Even though it’s literally law that counties count ballots in a timely manner; even though it’s happened in every other election; even though the daily tallies of how many ballots are received are posted online by the secretary of State; even though there are live camera feeds of ballots being processed in Los Angeles — somehow the U.S. government didn’t know this normal election procedure was happening, it claimed.
It wasn’t until late Friday, when DOJ lawyers read a filing by California DOJ lawyers laying out that L.A. is, like, actually opening mail-in ballots, that the U.S. DOJ realized that ballots are being opened. About 600,000 so far in L.A.
That seemed “absurd on its face,” argued California Deputy Solicitor Gen. Samuel P. Siegel.
Armed with this previously unknowable information, Trump’s lawyers were begging the appeals court to take their flimsy, constitutionally questionable case away from the judge who had already promised to rule on their requests on Tuesday and immediately give them an injunction to further their election conspiracy claims.
Most folks are aware of the background of this drama, but here’s the quick recap.
President Trump for years has falsely but incessantly claimed that Democrats are colluding with undocumented people to help them sneak into the country in exchange for illegally voting in mass numbers for Democrats. This is not happening, but the president is obsessed with this conspiracy, so much so that he is weaponizing the Department of Justice to attack states, California in particular, in a bid to prove his delusions correct, and perhaps as a bonus, undermine democracy.
A few months ago, the DOJ came to the state of California and claimed it had a list of 190,000 people it believed were illegally registered to vote. That list has since dropped to 20,000. But with all the investigative power of the government hard at work on this, only 28 people in California have been indicted by the feds during this no-holds-barred effort, and it looks as though not all of those cases will hold up.
Undeterred, Trump lawyers tried to get a California judge to order the state (and Los Angeles) to set aside ballots that it claims to have doubts about. They asked the judge in that case for a temporary restraining order forcing L.A. County to do that, and the judge agreed to rule on that request early next week, in an already-expedited fashion.
But then the Trump lawyers learned about all that ballot processing and demanded the judge instead rule by Saturday afternoon — though the reasoning here seems iffy. When the federal judge assigned to the case didn’t rule by Saturday, an absurd ask that didn’t even allow enough time for lawyers to file briefs, the feds ran to the 9th Circuit, claiming that failing to rule on Saturday was a de facto denial of their request.
Basically, it seems the Trump lawyers were arguing two things. First, that once ballots are counted, they can’t be uncounted, and if there are illegal ballots, that hurts all voters. Sure, OK.
But again, there is no evidence this is happening in any widespread fashion, and the lists of potential vote scofflaws compiled by the government have been shown to be error-ridden. They may also involve the use of a mysterious non-government “third party” to gather the information that not even the Trump lawyers could identify Sunday.
DOJ lawyers also claimed they had just learned that once a ballot is taken out of the envelope, there was no way to reconnect that ballot to the voter who cast it — because our votes are anonymous. Therefore, the 20,000 ballots had to be grabbed before they were separated from the documents inside.
The lawyers did not explain why they needed to know how a person voted to confirm they illegally voted. The envelopes are retained by county elections officials, but apparently the Trump lawyers feel it’s critical to tie them to particular votes.
But here’s the thing — there are simply not enough illegal voters to sway a Los Angeles election, or a California one for that matter. We have a system to ferrets out problematic ballots right now, and a separate criminal system that can hold illegal voters accountable. Two weeks before an election isn’t a time to demand ballots be withheld — unless you’re trying to undermine trust.
The appellate judges did not seem impressed by the federal laywers’ arguments, questioning more than once if the 9th Circuit even had jurisdiction since states are in charge of elections, not the federal government. There was even some reading of the 10th Amendment. You know, the one the don’t-tread-on-me types love that reads: “The powers not delegated to the United States by the Constitution, nor prohibited by it to the States, are reserved to the States.”
We should expect a ruling sooner rather than later, but the real question remains, why the emergency? The DOJ is involved in another voting lawsuit in Washington, D.C., where the plaintiffs, led by the UCLA Voting Rights Project, have asked for a restraining order of their own stopping the government from creating national lists of who it thinks should vote, and using janky, secretive information gathering to do it.
It’s also true that the original case was reassigned from a Trump-appointed judge to one appointed by Bill Clinton. There has been speculation the switch may have been viewed unfavorably by the feds, though the Clinton-appointed judge, David O. Carter, was given the case because of his experience in the subject matter.
The D.C. restraining order could be decided in the next few days. I’m not saying the cases are related, or that the judge should or does matter, but the Trump DOJ’s argument in California is basically that its list of 20,000 is really solid, reliable information.
If the D.C. federal judge rules first that the government information gathering is potentially both an overreach and sloppy, it makes it that much harder for another judge, or the appellate court for that matter, to rule that the list is so critical that they must step in.
So maybe there is an emergency.
Just not the one the government is claiming.