Judge rejects DOJ bid to set aside 20,000 California mail ballots

A federal judge in Los Angeles on Wednesday refused to let the Justice Department set aside as many as 20,000 California mail ballots that the department says belong to likely noncitizens, six days before Election Day. The Justice Department filed notice of an appeal within hours.

U.S. District Judge David O. Carter, a Clinton appointee, denied the department’s request for a temporary restraining order in a 26-page ruling, NPR reported. He wrote that setting the ballots aside would “wreak havoc and disrupt the election that is already underway,” according to CNN.

What the judge wrote

“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 wrote.

He concluded: “Once a vote is segregated, lasting harm has occurred.” Carter said the department could pursue its concerns by continuing to prosecute noncitizens accused of voting illegally, and noted that the government had not explained why continued ballot counting would impair any such prosecution. The Justice Department says it has charged dozens of people in the past two months with registering or voting without being U.S. citizens, NPR reported.

The department’s California lawsuit was filed Oct. 15. The state’s mail ballots are separated from their signed envelopes once signatures are verified, which the department argued made the matter urgent because an ineligible ballot cannot be retrieved afterward.

The disputed list

The Department of Homeland Security said in July that 190,000 registered California voters could be ineligible noncitizens, CNN reported. The federal government later gave election officials a list of 20,000 people it described as “high confidence” matches, delivered on a thumb drive with the password handwritten on a sticky note, and gave the state 48 hours to act, according to CNN. The administration has kept key details of how it analyzed the voter list secret, CNN reported.

Los Angeles County officials examined a small sample of the names and found that many did not have active voter registrations. Some of the people on the list had said in records that they were born in the United States, NPR reported. Nicolas Bartell, a senior official at U.S. Citizenship and Immigration Services, wrote in a court filing that his office’s review found none of those individuals were U.S.-born, and acknowledged that four “might have a claim to U.S. citizenship.”

Kassra Oskooi, a University of Delaware political scientist who is an expert witness for voting rights groups in the case, wrote in a declaration that he believes the matching protocol the federal government used “is likely to be unreliable.” Carter wrote that the protocol “raises significant concerns” and that he could not conclude the process is credible.

Audits and investigations have found that voting by noncitizens is extremely rare, NPR reported.

Reaction and the appeal

Bill Essayli, the top federal prosecutor in Los Angeles, wrote on X: “Every day, more ballots are processed by election officials.” He added that he would seek an emergency order from the 9th U.S. Circuit Court of Appeals. The case already went to the appeals court once last week. A divided 9th Circuit panel ruled 2-1 that the appeal was premature and sent the case back to Carter, CNN reported. The two judges in the majority also indicated they believed the department’s arguments were likely to fail on the merits.

California Attorney General Rob Bonta, a Democrat, said in a statement that the ruling was an important victory but “this fight is not over.” In a court filing, Bonta wrote that the litigation is “a precursor to further interference here in California.”

Jonathan Miller, chief program officer at Public Rights Project, which represents Los Angeles County, said in a statement that the decision “makes clear that the federal government’s actions are election interference.”

Similar demands in two other states

The California case is one of three direct challenges the Justice Department has brought to states this month while voting is underway, the Associated Press reported. On Monday the department sent a letter to Washington Secretary of State Steve Hobbs asking the state to set aside any ballots from more than 400 people it alleges registered without citizenship. The department said it had identified 1,500 votes cast by those people in past elections.

Hobbs said his office was reviewing the request. His office noted that the data included the last date each of the 405 people voted, and that one was in 1994. “The timing of this request, one week before the General Election, is no doubt intended to cast unfounded suspicion on the results,” Hobbs said. Neil Floyd, the acting U.S. attorney in Seattle, said the 405 voters identified so far were “the tip of the iceberg.”

The department also sued Alaska last week, Gray Media reported, seeking to block certification of the state’s U.S. Senate results. The suit says a candidate named Daniel J. Sullivan was meant to confuse voters with incumbent Republican Sen. Dan S. Sullivan. Election experts told Gray Media they could not recall a previous lawsuit like it and said it relies on a novel reading of the National Voter Registration Act.

California’s general election is Tuesday, Nov. 3.