Federal judge rejects DOJ bid to segregate 20,000 California ballots from suspected non-citizens

U.S. District Judge David Carter denied the Justice Department’s emergency request to force California to segregate approximately 20,000 ballots from individuals the department claimed were likely non-citizens. The ruling came Wednesday evening.

The DOJ sued California on October 15. It sought a temporary restraining order to stop election officials from processing ballots tied to people it identified as likely non-citizens. The department is expected to appeal Carter’s denial.

Carter: ‘lasting harm has occurred’

Carter called the effort unprecedented. “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 in his 26-page ruling. Carter warned that segregating ballots would effectively strip eligible voters of their franchise. “A ballot segregated, in effect, would be a ballot removed,” he wrote. He also wrote that granting the DOJ’s request would likely violate a 1993 law requiring states to strike ineligible voters from official lists no later than 90 days before an election. “Once a vote is segregated, lasting harm has occurred,” Carter wrote. “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.”

Carter rejected the premise. “In bringing this lawsuit, the Executive would have this Court believe that it reigns as a sole sovereign,” he wrote. “But California and its people are sovereign, too.” He added: “Eroded trust in our democracy is irreparable.” Carter said the federal government can address the issue by continuing to indict people for illegally voting as non-citizens. DOJ officials say they have charged dozens of people for registering or voting without being a U.S. citizen in the last two months.

Questions about the DOJ’s list

The DOJ delivered a USB drive to election officials in Los Angeles and Sacramento containing names of 20,000 non-citizens it said were on the state’s voter rolls. The department gave officials just 48 hours to review the list. It threatened to sue if they did not sequester ballots from those whose citizenship could not be confirmed. There are more than 23 million registered voters in California. State officials said they cannot verify the citizenship of those on the list before Election Day.

A Los Angeles County analysis of a small sample found that a significant portion had records indicating they were born in the U.S. USCIS senior official Nicolas Bartell contested that finding. He wrote that his office’s review found none of those individuals were U.S.-born. Bartell did acknowledge that four people “might have a claim to U.S. citizenship.” Kassra Oskooi, a University of Delaware political scientist serving as an expert witness for voting rights groups intervening in the case, stated in a declaration that USCIS’s matching protocol “is likely to be unreliable.” The DOJ refused to provide more details about its methodology, though some details were later provided in court filings. CalMatters reported that the department had flagged voters not on the rolls and provided insufficient information to verify citizenship status.

A broader DOJ push

In July, the Department of Homeland Security announced it had identified up to 190,000 non-citizens on California voter rolls. It did not provide details to the state until after ballots had already gone out. The DOJ separately threatened to prosecute election officials in California if they tabulate ballots from non-citizens. Sam Trepel, a former DOJ prosecutor, wrote in a blogpost that such a prosecution move would be without a legal basis. California Attorney General Rob Bonta wrote in a motion that the litigation is a precursor to further interference in California, urging the court not to be drawn into what he called a chilling degradation of democratic values and constitutional principles.

On Monday, federal prosecutors asked Washington state election officials to review a list of 400 registered voters the DOJ believes are likely non-citizens. Last week, the DOJ filed an unusual lawsuit in Alaska seeking to stop the state from certifying Senate race results if the Republican incumbent loses due to votes for a longshot candidate with a similar name. Non-citizen voting has been shown by audits and investigations to be extremely rare.

Procedural backdrop

After Carter set a 27 October hearing on the DOJ’s emergency motion, the department appealed to the U.S. Court of Appeals for the Ninth Circuit, saying Carter was not considering the case fast enough. A panel of Ninth Circuit judges ruled 2-1 against the DOJ earlier this week. The DOJ argued urgency because once signatures are verified on returned mail ballot envelopes, ballots are separated from envelopes to retain voter confidentiality and become impossible to retrieve.