“You’re asking us to take what you’re saying as fact, as opposed to what the IT guy is saying, and with no fact finding by the district court?” he asked.
The judges also indicated they may decline to step in immediately, sending the case back to the federal judge hearing it. The Justice Department could then appeal again, if it were to challenge a concrete ruling from the district judge. The Trump Administration had asked the court to expedite the case, arguing that the lower court judge’s pace on its requests effectively amounted to a denial of its request to set aside the ballots it is contesting. At the Government’s urging, the district judge presiding over the case, Judge David O. Carter, had scheduled a hearing on Tuesday to consider its case.
But on Sunday, Judge Gabriel P. Sanchez, a Biden appointee, also pressed Donnelly on why the number of non-citizens the Trump Administration was alleging were registered to vote had shrunk drastically in recent months.
The Trump Administration had said in July that as many as 190,000 non-citizens were unlawfully registered to vote. Sanchez added that directing the state to set aside mail-in ballots from people on the Administration’s list, relying only on the names and address on the envelopes, could lead to lawful voters with the same name having their ballots pulled out.
A third judge, Patrick J. Bumatay, also a Trump appointee, appeared more receptive to the Administration’s arguments. But he questioned Donnelly about whether it might be too close to the election for the courts to order new procedures.
Donnelly maintained throughout that the panel could issue a ruling even while Carter had taken steps to meet the Government’s aggressive timetable. He asked the judges to rule “as soon as possible”.
This article originally appeared in The New York Times.
Written by: Zach Montague
Photographs by: Getty Images
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