Federal Power Targets 20,000 California Ballots

The U.S. Justice Department is appealing a federal judge’s rejection of the Trump administration’s effort to block the counting of 20,000 California ballots it says may have been cast by noncitizens. Those ballots belong to voters whose eligibility the administration is challenging as California’s midterm election proceeds.

“Be aware that we consider DOJ’s efforts to threaten California election officials with criminal sanctions for following federal and state law to be an effort to unlawfully intimidate both election officials and California voters,” Susan K. Blitch, counsel for Monterey County, wrote. She warned that the threats “can undermine voters’ faith in the election process.”

Gov. Gavin Newsom said California was deploying lawyers and volunteers in response. “Right now, I am focused on getting over 1,000 poll workers, folks out there to monitor the DOJ monitors that Trump’s gonna send to try to steal this election,” Newsom said. “We have been running tabletop exercises. We have 1,000 volunteers. We have 134 election law attorneys that we’re sending out.”

A court fight over who controls the count

The appeal followed rulings by a federal court in Los Angeles and the U.S. 9th Circuit Court of Appeals against the administration’s effort. Attorneys on both sides were preparing Thursday for another court battle, while election officials continued processing ballots.

The Los Angeles judge called the request an unlawful threat to eligible voters in Tuesday’s midterm election and to free and fair American elections. On Wednesday, U.S. District Judge David O. Carter ruled that the administration’s allegations about noncitizen voters were “not credible.” He wrote that the requested intervention would violate federal laws, sow chaos in the ongoing election, likely disenfranchise legitimate voters and foster future political meddling.

Last week, Trump administration attorneys appealed directly to the 9th Circuit, arguing Carter had not ruled quickly enough on their emergency request for a temporary restraining order. They asked the court to block California, Secretary of State Shirley Weber and Los Angeles County Registrar-Recorder/County Clerk Dean Logan from counting the 20,000 ballots described as being from “likely noncitizens.”

On Monday, a three-judge 9th Circuit panel denied that appeal for lack of jurisdiction because Carter had not yet had an opportunity to rule. Two judges, Mark J. Bennett and Gabriel P. Sanchez, also wrote separately that they would have denied the request on its merits because it was likely unconstitutional and violated federal law.

Carter wrote that the administration’s request violated constitutional principles under which states control their elections. “If [the Trump administration’s] last-minute request for relief were granted, either party could create chaos for their own political purposes to disrupt the election process,” he wrote. He added that the federal government had never before sought, on the eve of an election, to coerce state and local government to abandon their procedures and “bend to the will of the Executive Branch.”

Threats, deadlines and competing claims

In a series of Oct. 23 letters, Justice Department attorneys gave counties varying numbers of people they described as “likely aliens” and set a 48-hour deadline for officials to cooperate with federal authorities to prove those voters were citizens. In Contra Costa County, U.S. Atty. Craig Missakian identified 407 potential noncitizens and warned Kristin Connelly about the legal implications of processing their ballots.

Thomas L. Geiger, Contra Costa County counsel, questioned the claims’ accuracy. He said it would be “legally unsound” for Connelly to disregard state and federal law to comply with Missakian’s demands. Tony Lopresti, an attorney for Santa Clara County, wrote that the county “reserves its rights to pursue all legal remedies against DOJ for its unlawful intimidation of election officials and California voters.”

The administration has accused state and county officials of turning a blind eye to voter fraud. Elections experts warned that it was trying to create confusion and suspicion around an election in which the Republican Party was poised to lose ground, potentially allowing it to reject the outcome. The experts also said courts had repeatedly rebuffed the administration and would continue to do so through Nov. 3 and afterward.

Rick Hasen, director of the Safeguarding Democracy Project at UCLA School of Law, said: “The federal government lost in every way it could possibly lose. It lost on the law, and it lost on the facts, and it lost on the equities — [or] weighing the harms to the various parties.”

The official response

Newsom wrote Thursday: “A warning to Donald Trump: I’m deploying election lawyers to key battleground districts in California to protect every vote. And I just made it a FELONY to illegally seize ballots.” On Wednesday night, he predicted Trump would act to “literally suppress the vote” and then “suggest that it was rigged.”

The Justice Department has also sent threats to state and county officials, who rejected the demands in letters they called unconvincing and illegal. In court Tuesday, First Assistant U.S. Atty. Bill Essayli said the federal government had maintained a collaborative “tone” since first demanding that the state set ballots aside, and said he was surprised by how “adversarial” state election officials had been.

Essayli later challenged Newsom’s pledge: “You’re going to protect every legal or illegal vote? What about California citizens whose votes are being diluted by ineligible voters. Do their constitutional rights matter.”