A federal appeals court on October 30 refused to order California to set aside about 20,000 mail ballots that the Trump administration claims may have been cast by noncitizens. The 2-1 ruling from a Ninth Circuit panel came four days before the November 3 midterm election.

The majority, Judges Mark J. Bennett and Gabriel P. Sanchez, wrote that “there is no feasible way to identify and segregate the ballots of specific individuals,” according to PBS NewsHour. The New York Times described the panel as calling the notion plainly unconstitutional.

The panel also found the Justice Department “failed to meet its burden” for emergency relief and called the request “simple only in the abstract.”

How the Case Got Here

This is the second time the Ninth Circuit has turned the administration away. On October 26, a panel dismissed an earlier emergency appeal, ruling it was premature because the government had not given the district court enough time to act. “The United States’s claimed emergency, at least in part, is a self-constructed one,” the majority wrote then.

A district judge then denied the request to segregate ballots on October 28, warning it could disenfranchise citizens. Friday’s ruling found no clear error in that decision.

California officials have called the federal list highly unreliable. Los Angeles County said in court papers that most voters in a random sample of the list appeared to have been born in the United States.

Judge Patrick J. Bumatay dissented both times. He wrote Friday that California’s position “undermines the federal government’s interest in promoting election integrity.”

The Justice Department is not backing down. Spokesperson Kiersten V. Pels said, “The Department makes no apology for protecting those votes,” and department lawyers have said they will take the fight to the U.S. Supreme Court, PBS reports.

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