DOJ Subpoenas California Officials After Ballot Grab Fails

The Justice Department issued grand jury subpoenas to California state and local officials after a federal judge rejected the Trump administration’s request to separate ballots tied to roughly 20,000 people it claims aren’t U.S. citizens. The subpoenas, sent between Oct. 21 and Oct. 24, put election workers under federal scrutiny while ballots were already being processed.

Los Angeles Registrar-Recorder/County Clerk Dean Logan said Judge David Carter’s warning about threats against election officials was “well placed and appreciated.” Carter wrote, “these threats must stop.” Logan said the Justice Department had taken “a confrontational, adversarial approach” and added that election officials were acting in accordance with state and federal law. “Threats and intimidation have no place in elections,” he said.

The federal apparatus turns up the pressure

Three subpoenas reviewed by CBS News went to officials at the office of the Los Angeles Registrar-Recorder/County Clerk. They seek documents about the county’s correspondence with Homeland Security Secretary Markwayne Mullin and acting Deputy Attorney General Trent McCotter concerning noncitizen voting. They also demand records and communications about the agency’s methods for “screening for unlawful voting by aliens,” along with information about evidence collected regarding noncitizen voters.

The administration had asked Carter to stop California from processing ballots associated with as many as 20,000 people it said were likely noncitizens. More than 3.7 million people had already voted in the state. California mails ballots to all 23 million registered voters, and court filings showed that more than 500,000 ballots had been processed by that week, their envelopes verified and ballots removed.

Los Angeles County officials testified that identifying which voter cast a particular ballot would therefore be virtually impossible. Carter said separating ballots during an ongoing election would force counties to create new sorting methods and risk disenfranchising an untold number of voters. He also said the request would have the same effect as purging voters and violate the National Voting Rights Act, which prohibits changes to voter rolls within 90 days of an election.

Ballots caught in the machinery

Carter wrote that the request “would wreak havoc and disrupt the election that is already underway, create a chilling effect on election workers and voters alike, and discount the votes of United States citizens.” He warned: “If the Executive can discount votes and threaten an ongoing election due to unproven allegations, then our democracy is in danger. This Court declines to be a party to such process.”

The Republican administration sued election officials in the Democratic state in mid-October, alleging they failed to meet a 48-hour deadline to review a list of 20,000 people it said were likely noncitizens on the voter rolls. It asked the judge to delay counting their ballots until their immigration status could be verified. Carter rejected that request, as well as the Justice Department’s argument that California was impeding federal law enforcement.

Carter noted that prosecutors had already shown they could enforce election law by arresting 28 noncitizens who allegedly voted or registered illegally. He had previously said in court that he was inclined to appoint a special master to examine the government’s data processes, but his Wednesday order did not establish one.

The appeal and the competing claims

The Justice Department said prosecutors would immediately appeal. The 9th Circuit Court of Appeals had denied the government’s first appeal because it preempted the district court’s decision; two of the three judges also expressed overwhelming skepticism about the lawsuit’s merits. The federal government said it would appeal for a second time on Wednesday evening.

First Assistant U.S. Attorney Bill Essayli repeated the administration’s argument after the ruling, writing on social media: “Every day, more ballots are processed by election officials. This ongoing emergency disenfranchises American citizens through dilution.” He had argued that segregation wouldn’t impede the election and was intended to prevent the “dilution” of votes by noncitizens. “Segregating a ballot does not prevent it from being counted later,” he said. “It is designed to preserve the status quo and prevent the infection of our election with illegal ballots.”

A Justice Department spokesperson said the agency doesn’t comment on leaks about grand jury subpoenas, but called criminal investigative action the next logical step after Carter’s ruling. The spokesperson said the judge had explained that unlawful voting results in criminal exposure, and that California’s court filing identified criminal prosecution as the remedy. The spokesperson added that the department maintained a civil remedy was available, while saying all agreed noncitizen voting was properly addressed through criminal law.

David Becker, executive director of the Center for Election Innovation and Research, said the ruling “confirmed what we already know: states, not the federal government, run elections.” Jon Miller, the Chief Program Officer for the Public Rights Project, a progressive civil rights organization representing Los Angeles County officials, called it a “major victory for voters” and said his organization remained prepared for further challenges.