Judge denies the Justice Department's bid to stop processing California ballots

A federal judge has denied an unprecedented, emergency request by the Department of Justice to segregate thousands of California ballots in the midterm elections.

The Justice Department wants California election officials to stop processing ballots pertaining to 20,000 individuals that federal officials say are "likely" noncitizens.

State and local officials in California have countered that the DOJ's list of "likely" noncitizens is unreliable, with a preliminary analysis by Los Angeles County showing that many on the list do not have active voter registrations. The officials also claim that setting aside ballots just days before Election Day, when voting and processing mailed ballots are already underway, would be unlawful and infeasible and would disenfranchise eligible voters.

In his 26-page ruling issued Wednesday evening, U.S. District Judge David Carter, a Clinton appointee, denied the Justice Department's request for a temporary restraining order to stop processing the ballots in question.

"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," he wrote.

Carter also expressed concern about taking action that could disenfranchise eligible voters and create chaos.

"Once a vote is segregated, lasting harm has occurred," Carter wrote at the conclusion of his order. "If the Executive can discount votes and threaten an ongoing election due to unproven allegations, then our democracy is in danger. This Court declines to be a party to such process."

The judge said that the federal government can address the issue by continuing to indict people for the crime of illegally voting as noncitizens. DOJ officials say in the last two months they have charged dozens of people for registering or voting without being a U.S. citizen.

The DOJ's lawsuit in California, which was filed Oct. 15, is among a flurry of unprecedented actions the department has waged in states close to Election Day, raising alarms about federal interference in state election procedures.

Like in California, on Monday federal prosecutors asked Washington state election officials to review a list of 400 registered voters the DOJ believes are likely noncitizens. And last week, the DOJ filed an unusual lawsuit in Alaska that seeks to stop the state from certifying the results in its Senate race if the Republican incumbent loses due to votes for a longshot candidate with a similar name who is accused of being a spoiler candidate.

In California's most recent motion to the court, state Attorney General Rob Bonta, a Democrat, asked the judge to take into account the circumstances of DOJ's demand. "This litigation is a precursor to further interference here in California," Bonta wrote. "The Court must not be drawn into this chilling degradation of democratic values and constitutional principles."

The Department of Justice quickly filed a notice that it is appealing Carter's denial. The matter could ultimately wind up before the U.S. Supreme Court.

"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, wrote on X, adding that he would be seeking an emergency order from the 9th Circuit Court of Appeals. 

The DOJ has argued the issue is urgent since once signatures are verified on returned mail ballot envelopes, the ballots are separated from their envelopes to retain voter confidentiality, making it impossible to retrieve an ineligible ballot. 

Voting by noncitizens has been shown by audits and investigations to be extremely rare.

"Tonight's decision makes clear that the federal government's actions are election interference," said Jonathan Miller, chief program officer at Public Rights Project, which is counsel for Los Angeles County.

"The district court unequivocally found that DOJ's claims are unsubstantiated, that it has no basis to bring its lawsuit, and it has presented no evidence to justify its actions. The administration claims to be protecting election integrity while, at every turn, undermining the systems and federal support that safeguard our elections," Miller said.

Bonta, California's attorney general, said in a statement the ruling is an important victory, "But this fight is not over. We will keep fighting to protect California's elections from unlawful federal interference and get this baseless lawsuit dismissed."

The accuracy of the DOJ's list of "likely" noncitizens is still an ongoing matter of dispute.

A Los Angeles County analysis of a small sample of people on the DOJ's list found that a significant portion had said in records they were born in the U.S. But U.S. Citizenship and Immigration Services senior official Nicolas Bartell contested that in recent court filings, writing that his office's review of those individuals found none were U.S.-born.

Bartell did acknowledge the review found four of those people "might have a claim to U.S. citizenship."

He also provided the court additional details about the federal government's methodology in creating the list in recent court filings.

But University of Delaware political scientist Kassra Oskooi, who has been tapped as an expert witness by voting rights groups who are intervening in the case, responded in his own declaration to the court that he believes USCIS's matching protocol "is likely to be unreliable."

Carter wrote in his order the federal government's protocol "raises significant concerns" and that he could not conclude its process is credible.