Judge says DOJ threats to California election staff should stop

A federal judge in California told the Justice Department at a hearing on Tuesday, Oct. 27, that it “would be wise that any threats to state and county election employees cease immediately,” as the department asked the court to stop the state from counting about 20,000 mail ballots.

U.S. District Judge David Carter made the remark while hearing the department’s request for an emergency temporary restraining order, Democracy Docket reported. The department sued California on Oct. 15, more than a week after mail ballots went to all registered voters, after the state declined to set aside ballots from people the federal government suspects may be noncitizens. Carter said he would rule on the request on Wednesday. The outlet reported that he appeared skeptical of the department’s position.

The threats at issue

First Assistant U.S. Attorney Bill Essayli represented the department at the hearing. A different judge disqualified him from his post as the California arguments wrapped up, but that order is stayed, Democracy Docket reported. The outlet reported that Essayli has repeatedly threatened to prosecute election officials who do not set aside ballots until voters’ citizenship is confirmed, and that last week he posted on X that knowingly processing noncitizen ballots is a federal crime under 18 U.S.C. Sections 611 and 2.

California Deputy Attorney General Michael Cohen, arguing for California, said the department was stretching several legal doctrines far beyond their meaning. He said Section 611 “has nothing to do with election administration” and that the federal government has not explained how its list of suspected noncitizen voters was generated. Democracy Docket reported that the Section 611 threat is aimed at individual voters and does not apply to election workers.

The department’s record in court

The California case follows a series of court losses. In August, Democracy Docket reported that the department had lost all 23 district court cases in which judges ruled on its effort to use Title III of the Civil Rights Act of 1960 to obtain full statewide voter-registration databases, including driver’s license and Social Security numbers. The Sixth Circuit rejected the department’s position, and the full court declined to rehear the case on a Friday in mid-August. Attorney General Todd Blanche said the day before that seeking Supreme Court review was “a possibility,” the outlet reported.

In Georgia, U.S. District Judge William M. Ray II, a Trump appointee, quashed a federal grand jury subpoena tied to the 2020 election in Fulton County, ruling that the statute of limitations on any possible crime from that election had expired, Talking Points Memo reported in July. U.S. District Judge Patrick Schiltz quashed federal grand jury subpoenas against Minnesota Democratic officials, finding they were meant to “harass, coerce, and retaliate,” according to the same report.

Warnings to all 50 states

Dhillon, the assistant attorney general for civil rights, sent letters to all 50 states and the District of Columbia that threaten election officials with criminal prosecution unless they act to curb noncitizen voting, Talking Points Memo reported. She gave states five days to explain how they would comply. Utah Lt. Gov. Deidre Henderson, a Republican, responded that the department’s demands for private voter data were “illegal” under at least a dozen court rulings.

Dhillon said in August that in states cooperating with the department there are “hundreds of thousands of dead people” and “tens of thousands” of noncitizens on voter rolls. She did not name the states or provide evidence, and she acknowledged the department must verify further before determining whether anyone voted illegally, Democracy Docket reported.

The articles reviewed do not state what Carter decided on Wednesday. Election Day is Tuesday, Nov. 3.