9th Circuit Questions DOJ Demand to Set Aside 20,000 Mail Ballots

A three-judge panel of the 9th U.S. Circuit Court of Appeals expressed sharp skepticism during a rare Sunday hearing over an emergency request by the U.S. Department of Justice to force California election officials to set aside roughly 20,000 mail-in ballots ahead of the Nov. 3 general election, NBC Bay Area and the Napa Valley Register reported.

The panel — consisting of U.S. Circuit Judges Mark J. Bennett, Gabriel P. Sanchez, and Patrick J. Bumatay — heard arguments after a lower court denied the Justice Department's initial motion for a temporary restraining order last week. The dispute began on Oct. 13 when Acting Deputy Attorney General Trent McCotter sent a letter giving California Secretary of State Shirley Weber and Los Angeles County Registrar-Recorder/County Clerk Dean Logan 48 hours to agree to isolate ballots cast by first-time voters whose registration records triggered database mismatches under the Help America Vote Act of 2002.

Clerical Mismatches and 140,000 Staff Hours

When state and county officials declined, the Justice Department filed suit on Oct. 15, alleging that roughly 20,000 registration records statewide contained unverified driver's license or Social Security numbers. During Sunday's hearing, DOJ attorney Matthew Donnelly argued that verifying a voter's identification number when they return a mail ballot would take only a few minutes per ballot.

California Deputy Solicitor General Samuel P. Siegel countered that the federal government waited until voting was already underway to seek an unprecedented disruption of state election procedures, warning that the demand would disenfranchise eligible voters over clerical data-entry errors such as hyphenated surnames. Representing Los Angeles County, former U.S. Solicitor General Seth Waxman noted that Assistant Registrar-Recorder Monica Flores personally reviewed 200 flagged records and found routine clerical discrepancies rather than ineligible voters.

Waxman told the court that inspecting every incoming mail-in ballot across Los Angeles County's 2.75 million mail voters at three minutes per ballot would require roughly 140,000 staff hours — the equivalent of 16 years of continuous work. Judge Sanchez questioned how counties could realistically implement a new verification regime days before Election Day, while Judge Bumatay pressed the government on why the lawsuit was filed so close to the election. The panel took the case under submission and indicated a ruling would follow shortly.