The Justice Department on Friday moved to dismiss its lawsuit seeking to require California to set aside mail ballots for roughly 20,000 voters it alleged were not U.S. citizens until their immigration status could be verified.1,3
The request came days after the midterm elections and about a week before a scheduled hearing at which a special master was to evaluate the accuracy of the government's list. The case had been at the forefront of the Trump administration's effort to assert control over state-run elections, which Mr. Trump has said are rife with illegal voting without providing evidence.1
On Monday, on the eve of Election Day, the Supreme Court rejected an emergency appeal from the Justice Department that would have required California to separate mail ballots received from the approximately 20,000 people it alleged were noncitizens. The court rejected the appeal in a one-line, unsigned order.1
In its motion to dismiss, the department said that by the time of the upcoming hearing, the state will have already irreparably "commingled the challenged ballots with lawful ones." California had processed roughly 9 million ballots as of early Friday, with nearly 5 million still left to be counted, according to state election officials. The lawsuit was filed in mid-October, when ballots had been sent to all of the state's 23 million registered voters and after hundreds of thousands of ballots were already processed, at which point a processed ballot is completely anonymized.1
"The relief the United States sought and needed is no longer available—rendering voluntary dismissal necessary," the motion said. Bill Essayli, the top federal prosecutor in Los Angeles, had previously argued in court that the lawsuit would be irrelevant after Election Day because there would be no way to sequester the ballots allegedly belonging to noncitizens.1
Essayli said at the time the lawsuit was filed that his goal was to "safeguard the integrity of the election so it doesn't have an effect on the upcoming election." "We want to stop the illegal voting. We don't want to chase it later," Essayli said outside of court the week before the election.1
California officials have previously said the list is out of date and includes legitimate voters. U.S. District Judge David O. Carter, who was appointed by former President Bill Clinton, echoed that assessment in his order allowing California to proceed with elections as planned and denying the federal government's request to separate ballots.1
Carter, who appointed the special master in late October, wrote that separating ballots at that late stage would risk disenfranchising citizens and warned it would "wreak havoc" on the midterm elections. The special master would have also considered whether or not California election officials did in fact have a mechanism for separating the ballots.1
The Justice Department remains in litigation with immigrant and voting rights groups seeking to limit its use of the list of what it says are suspected noncitizens. In a separate case filed before the election at Mr. Trump's direction seeking to block the victory of the Democrat in Alaska's Senate race, a federal judge dismissed the lawsuit, a ruling the administration is appealing but for which it has yet to file a full brief at the Ninth Circuit Court of Appeals.1
California prosecutors in recent weeks have arrested over 30 noncitizens who are accused of illegally registering to vote, with some also accused of voting in previous elections. Elections clerks around California in the week before the election were sent subpoenas to testify before grand juries slated to convene in November. It is not clear who is being criminally charged in those cases, but the department does not typically subpoena people whom it regards as targets of a criminal investigation to appear before a grand jury.1
The United States Attorney's Office for the Central District of California referred all questions to the Department of Justice in Washington, D.C., which did not respond to an emailed request for comment on Friday evening.1
