Federal Judge Rejects Justice Department Bid to Set Aside 20,000 California Ballots

A federal judge in the United States has denied an emergency request by the Department of Justice to stop processing thousands of California ballots and segregate them in the midterm elections. In a 26-page ruling issued on Wednesday evening, U.S. District Judge David Carter rejected the department's request for a temporary restraining order.

The Justice Department wanted ballots cast by 20,000 individuals to be set aside — people federal officials say are 'likely' noncitizens. About two weeks ago, the department delivered a USB drive to election officials in Los Angeles and Sacramento that it said contained the names of 20,000 noncitizens on the state's voter rolls.

California has more than 23 million registered voters, and voting by noncitizens has been shown by audits and investigations to be extremely rare. State and local officials have countered that the DOJ's list of 'likely' noncitizens is unreliable; a preliminary analysis by Los Angeles County found that many on the list do not have active voter registrations, and a small sample it examined found a significant portion had said in records they were born in the U.S.

In his ruling, Judge Carter wrote that the case is about the right of every American citizen to vote in a free and fair election. He wrote that never before in American history has the federal government, on the eve of an election, sought to coerce a state and local government to abandon their own constitutional elections procedures and bend to the will of the Executive Branch.

Carter continued that in bringing the lawsuit, the Executive would have the court believe it reigns as a sole sovereign, but California and its people are sovereign too. At the conclusion of his order he wrote that once a vote is segregated, lasting harm has occurred, and that if the Executive can discount votes and threaten an ongoing election due to unproven allegations, then democracy is in danger — a process the court declines to be a party to.

The Justice Department gave officials just 48 hours to review the list and said it would sue the state if officials did not sequester ballots from those whose citizenship it could not confirm. The department refused to provide more details about its methodology. It then sued California on October 15 to try to force the state to sequester the ballots and verify citizenship.

U.S. Citizenship and Immigration Services senior official Nicolas Bartell contested the Los Angeles analysis in recent court filings, writing that his office's review of those individuals found none were U.S.-born. He did, however, acknowledge the review found four of those people might have a claim to U.S. citizenship. Bartell also provided the court additional details about the federal government's methodology in creating the list.

University of Delaware political scientist Kassra Oskooi, tapped as an expert witness by voting rights groups intervening in the case, responded in his own declaration that he believes USCIS's matching protocol is likely to be unreliable.

The judge said the federal government can address the issue by continuing to indict people for the crime of illegally voting as noncitizens. DOJ officials say that in the last two months they have charged dozens of people for registering or voting without being a U.S. citizen.

California Attorney General Rob Bonta asked the judge in the state's most recent motion to take into account the circumstances of the DOJ's demand, writing that the litigation is a precursor to further interference in California and that the court must not be drawn into this chilling degradation of democratic values and constitutional principles. The department has also threatened to prosecute state election officials if they tabulate ballots from noncitizens; former DOJ prosecutor Sam Trepel wrote in a blogpost this month that such a move would be without a legal basis.

Carter's ruling came after the Justice Department tried to bypass him entirely. After Carter set an October 27 hearing on the department's emergency motion, the department took the unusual step of appealing to the U.S. Court of Appeals for the Ninth Circuit, saying Carter was not considering the case fast enough. A panel of Ninth Circuit judges ruled 2-1 against the Justice Department earlier this week.

The California case is among a flurry of unprecedented actions the department has waged in states close to Election Day. On Monday, federal prosecutors asked Washington state election officials to review a list of 400 registered voters the DOJ believes are likely noncitizens. Last week, the DOJ filed an unusual lawsuit in Alaska seeking to stop the state from certifying the results in its Senate race if the Republican incumbent loses due to votes for a longshot candidate with a similar name accused of being a spoiler candidate.

In July, the Department of Homeland Security announced it had identified up to 190,000 noncitizens on California voter rolls. The DHS did not provide more details to the state until after ballots had already gone out in the state. Legal experts have been skeptical about the Justice Department's efforts in California since the outset.

The DOJ has argued the issue is urgent since ballots are already being processed: once signatures are verified on returned mail ballot envelopes, the ballots are separated from their envelopes to retain voter confidentiality and it then becomes impossible to retrieve an ineligible ballot. Federal prosecutors argue that votes by noncitizens dilute the votes of U.S. citizens. The department is expected to appeal Carter's denial, and the matter could ultimately wind up before the U.S. Supreme Court.