In a rare Sunday hearing, a federal appeals court judge appointed by President Trump questioned how the Trump administration's request to intervene in California's ongoing midterm election in order to force state officials to set aside 20,000 ballots from voters whose citizenship it questions squares with the U.S. Constitution.
Judge Mark J. Bennett said that while the executive branch is "unhappy" with what California law requires for ensuring voters are citizens, the state has the right to determine the manner of its elections under the Elections Clause of the Constitution and Congress has not challenged that process, despite having the ability to do so.
"It seems to me that you want us to issue an injunction that is entirely inconsistent with the law the California Legislature has adopted pursuant to the Elections Clause," Bennett said. "How can we do that?"
Matthew Donnelly, a Justice Department attorney, said the Trump administration has good reason to believe those ballots are from ineligible noncitizen voters, and has the legal right under separate federal criminal law to challenge their tabulation until state officials can prove otherwise.
Donnelly said both federal criminal law and state election law bar noncitizen voters from casting ballots, but "the problem is that California isn't interested in enforcing that provision."

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