DOJ Seeks to Block California Ballots on Unverified List

The Justice Department is suing California over ballots cast by thousands of people it alleges are noncitizens, demanding that the state stop counting them even as votes move through the election. U.S. District Judge David O. Carter said Tuesday he was considering appointing a special master to assess the administration’s claim that about 20,000 noncitizens appear on California’s voter rolls.

More than 3 million ballots had already been returned. California officials say election workers separate a completed mail ballot from the envelope containing voter identification, so they can’t separate ballots already submitted. The federal government disputes the state’s claim that it can’t do so before certification.

The people behind the disputed list

Los Angeles County found that a small sample of people on the Justice Department’s list were citizens. The federal agent who conducted the investigation said in an affidavit that the county’s findings were false, though the filing acknowledged that some citizens could have been mistakenly included. Roughly 800 federal employees manually checked each name.

Lawyers for California and Los Angeles County said the federal government hadn’t specified how or when it obtained the voter file, leaving open the possibility that its list was inaccurate or outdated. They also questioned the government’s reliance on a private, third-party service to determine Social Security numbers used in the effort. The people whose ballots face scrutiny are caught between an unverified federal list and an election process already underway.

M. Patrick Moore, a lawyer for the Los Angeles County registrar’s office, said the county would cooperate with prosecutions. “If an individual who is a noncitizen votes, there will be record of that, and the county will provide that record” to the federal courts, Moore said Tuesday. He added that legal processes are available to contest an election outcome if the federal government believes the election was compromised.

The hearing didn’t describe any grassroots or community response. It focused on government agencies, lawyers and the judge weighing how election workers should handle ballots—and on threats that county clerks who don’t comply with federal demands could face criminal prosecution.

A court weighs the federal demand

Carter said an independent review of both sides’ claims could finish before California’s Dec. 11 deadline to certify election results. He said he wouldn’t issue an official order until Wednesday. Without an independent review, he said, deciding the matter would be too rushed; he also wanted to vet the federal list.

The 20,000 people on the Justice Department’s list make up a small fraction of California’s 23 million voters. Voting had been underway for weeks in the midterm election, which concludes next Tuesday. Available data indicates alleged noncitizen voting is exceedingly rare, even as it has become a focus of President Donald Trump’s administration while control of Congress is at stake.

The Republican administration sued California election officials in mid-October, accusing them of failing to meet a 48-hour deadline to review its list. This week, the Justice Department made a similar request in Washington state, seeking to sequester ballots submitted by hundreds of people it suspects aren’t U.S. citizens. A separate lawsuit filed in Alaska last week seeks to delay vote certification if the Republican incumbent running for U.S. Senate doesn’t win. All three states have House or Senate races that will help determine the balance of power in the nation’s Capitol.

Carter questioned why the federal government was suing California instead of pursuing alleged noncitizen voting through criminal prosecutions. He pointed to the federal government’s October arrest of 28 people across California accused of illegally registering to vote. “You got a remedy for goodness sakes — go out and indict,” Carter said from the bench.

The government says it wants safeguards

First Assistant U.S. Attorney Bill Essayli argued that the United States had an interest in preventing noncitizens from voting. “We want to stop the illegal voting,” he said. “We don’t want to chase it later.” Essayli said the government’s demands wouldn’t significantly disrupt the ongoing election and that it hadn’t asked to void any ballots. The department wanted to work with California officials to “safeguard” the election, he said.

Essayli said testimony would explain how the government compiled the list of 20,000 names. “The case rises and falls on the credibility” of the flagged names, he told the judge, arguing California had an obligation to investigate before counting those voters’ ballots. Carter, meanwhile, warned that pressure on election workers had to stop: “This court believes it would be wise that any threats to state and county election employees cease immediately,” he said before abruptly leaving the courtroom.