DOJ Bid to Sequester 20,000 California Ballots Blocked

“What we’re talking about is stripping voting rights from thousands of people until proven otherwise,” California deputy attorney general Anne Bellows told a hearing. A federal judge rejected the Trump administration’s demand that California set aside as many as 20,000 mail ballots from people the government says may be noncitizens. He warned that citizens could lose their votes in an election already underway.

U.S. District Judge David O. Carter of the Central District of California issued his ruling Wednesday, following a 3½-hour hearing Tuesday. The administration wanted election officials to hold ballots from people on a federal list until officials could confirm their citizenship. The list gave officials a 48-hour deadline to review it. California has more than 23 million registered voters.

The dispute pits federal power against state election administration, with voters on the receiving end of an unproven accusation. Carter called the government’s allegations “not credible.” He wrote that the requested intervention would violate longstanding constitutional principles that give states control over their elections.

A list with unanswered questions

The Justice Department built its emergency case around a purchased voter list matched against other government data. The administration didn’t disclose key details about how it analyzed California’s voter rolls. In July, the Department of Homeland Security said 190,000 registered California voters could be ineligible foreigners. The government later gave officials a thumb drive containing a list of 20,000 purported “high confidence” matches, with the password written by hand on a Post-it note.

A U.S. Citizenship and Immigration Services official, Nicolas Bartell, said the agency found roughly 189 records with minor data discrepancies among the 20,000 names. California attorneys challenged the data’s reliability, saying state procedures allow officials to cancel registrations when someone is proven ineligible. “Where is the evidence?” asked Christina McCall, an attorney representing California. She called the allegations “vague” and “not reliable.”

Los Angeles County lawyers said separating ballots by the end of the election period would be “impossible”: workers would have to inspect ballot envelopes by hand. The county said just over 7,000 of the 20,000 records listed Los Angeles County addresses. In a sample of 200 records, a county review found that more than half involved canceled or inactive registrations, so no ballot had been mailed. Of the 200 people in that sample who reported their birthplace, just over 38% said they were born in the United States. Bartell said USCIS reviewed immigration records for those 200 people and determined that none were born in the United States. DHS officials disputed indications that some people the government identified were U.S.-born.

Ballots already moving

California sent mail ballots to registered voters in early October. More than 3.5 million had come back statewide, and lawyers for Dean Logan said Los Angeles County had processed more than 550,000. The Nov. 3 midterm elections are five days away; voters will decide which party controls the House and Senate.

California attorneys warned that the proposed process would require officials to investigate tens of thousands of people, without clear standards, just before an election. Bellows called it “a recipe for disenfranchisement.” Reports said data show noncitizen voting violations are infrequent, though federal and California law prohibit noncitizens from voting in federal elections. California officials called the lawsuit a “reckless political stunt” intended to cast doubt on election results. The request also appeared to clash with a federal law barring officials from removing voters from registration lists within 90 days of an election.

Carter said the federal government could prosecute suspected illegal voting rather than require officials to set ballots aside. He pointed to 28 indictments prosecutors had recently announced involving people found to have voted illegally in California in recent years. “You’ve got a remedy, for goodness’ sakes,” he told Bill Essayli, First Assistant U.S. Attorney for the Central District of California and the top federal prosecutor in Los Angeles. “Go out and indict.”

The appeal keeps the fight alive

The Justice Department had already asked the U.S. Court of Appeals for the 9th Circuit for emergency review. On Monday, a three-judge panel rejected the request in a 2-1 decision, finding it lacked jurisdiction because the district court had not ruled and the administration hadn’t given Carter an adequate chance to consider temporary relief. The majority called the claimed emergency at least partly “a self-constructed one.” Judge Mark Bennett noted the government’s delay in filing suit and said California’s ballot-processing and mail-ballot laws weren’t new.

Circuit Judge Gabriel Sanchez wrote that the government was asking the court to dictate a matter within the state’s traditional domain, inviting disorder and confusion. Trump appointee Patrick Bumatay dissented, arguing that federal law barred California from commingling ballots likely cast by noncitizens with legitimate ballots.

The administration signaled it would appeal Carter’s ruling. On Wednesday evening, Essayli announced that it had filed a notice of appeal and would seek emergency relief from the Ninth Circuit. “We’re not telling California what they have to do. We’re telling them what they can’t do,” he said. Then he made his point more bluntly: “What they cannot do is do nothing, and proceed to count the votes.”