U.S. District Judge David Carter on Wednesday rejected the Justice Department's request for an emergency order that would have required California to set aside mail ballots from about 20,000 voters the department described as likely noncitizens.1,4,6,7
The 26-page decision leaves California election officials free to continue processing and counting mail ballots less than a week before the Nov. 3 midterm elections, when voters will decide which party controls the House and Senate. The department said separating the ballots was needed to prevent dilution of lawful votes.4,7
Carter said the request ran against the division of authority over elections. "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 added, "In bringing this lawsuit, the Executive would have this Court believe that it reigns as a sole sovereign. But California and its people are sovereign, too."1,4,6,7
Carter, an appointee of former President Bill Clinton, said granting the order would allow either party to create disruption around voting. "Over 20,000 registered Californians would potentially lose the right that generations of Americans have fought to preserve," he wrote. He said the order 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."1,4,7
The judge said the department's method for identifying the voters raised questions about accuracy. He called the methodology vague and said he could not conclude the process was credible, writing that the protocol for verifying citizenship "raises significant concerns." Los Angeles officials said in court papers that a preliminary review of 200 names found a "high percentage" of people who said they were born in the United States and many more with no voting history, and other county reviews found voters flagged who were not on the rolls and information insufficient to verify citizenship, according to CalMatters. Carter wrote, "A ballot segregated, in effect, would be a ballot removed."1,4,6
The department argued California was potentially mixing lawful ballots with ballots from alleged noncitizens and frustrating congressional efforts to protect election integrity. "Every day, more ballots are processed by election officials. This ongoing emergency disenfranchises American citizens through dilution," Bill Essayli, the top federal prosecutor in Los Angeles, said in a statement. "There's an interest in the American public having trust and confidence in their elections," Essayli said, adding that the administration was not asking to void or cancel any ballots but to hold the disputed ballots apart until citizenship could be confirmed.4
California officials opposed the request and described the lawsuit as a "reckless political stunt" intended to raise doubt about the results. They said the litigation conflicted with the principle that states administer their own elections and could produce disorder in tabulating final counts in the coming weeks. State officials said they could not verify the citizenship of those on the list before Election Day, and Carter agreed that tabulation should not be stopped on the basis of allegations from what he described as a procedure with uncertainty and errors.1,4,6
At a hearing the day before the ruling, Carter questioned why the government could not pursue criminal cases after the election rather than set ballots aside now. "I think there's always been an encouragement of people's right to vote, we the people, because when we exercise our right to vote, we exercise equality," Carter said. He noted investigators could use identifying information on returned ballot envelopes to bring cases later, telling department lawyers, "The remedy as a good prosecutor is to make sure these people are prosecuted." He described the requested separation as a "monumental change" to procedures while voting was underway.4
The lawsuit was filed Oct. 15 against California, Secretary of State Shirley Weber and Los Angeles County Registrar-Recorder and County Clerk Dean Logan after the department delivered a USB drive to officials in Los Angeles and Sacramento with what it said were 20,000 noncitizens on the rolls. The department gave officials 48 hours to review the list and asked that ballots from those voters not be tabulated until citizenship was confirmed. California has more than 23 million registered voters, and federal and California law prohibit noncitizens from voting.4,6,7
The department had first asked the U.S. Court of Appeals for the 9th Circuit on Friday to order the ballots set apart, saying Carter was not moving fast enough after he set a hearing for Oct. 27. A three-judge panel voted 2-1 on Monday to dismiss that appeal, finding the department had not given the district judge "adequate opportunity" to decide the emergency request. Carter also said he intends to appoint a special master to examine how the department compiled the list of 20,000 names.1,4,6
The California case is part of a wider federal effort to seek voter records to identify alleged noncitizen voting ahead of Tuesday's election. The administration has issued more than 100 subpoenas seeking records on tens of thousands of voters in at least 13 states, both Republican- and Democratic-leaning, most in the past three months, according to Reuters. Legal experts said the records could be used to challenge close midterm results despite scant evidence that noncitizen voting is widespread. In July, the Department of Homeland Security said it had identified up to 190,000 noncitizens on California rolls but did not provide details to the state until after ballots had gone out.6,7
The department plans to appeal Carter's decision and seek an emergency order from the 9th Circuit. "Constitutional rights and our democracy are at stake. The public interest favors their protection," Carter wrote. "Individuals who have met the requirements of California's voter registration laws must not be deprived of a core right merely because of unfounded allegations stemming from a procedure rife with uncertainty and errors."4
