Judge Rejects DOJ Bid to Make California Set Aside Ballots from 20,000 Alleged Noncitizens

On Wednesday, a federal judge in California turned down a request from the Trump administration that would have forced election officials there to pull aside mail ballots from roughly 20,000 people the government says are not U.S. citizens. The ruling, from U.S. District Judge David Carter, came less than a week before the Nov. 3 midterms, when voters decide which party controls the House and the Senate.

Carter wrote in a 26-page decision that the Justice Department's demand to segregate and exclude the ballots runs against longstanding constitutional principles that give states authority over their own 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," he wrote. He added that the Executive could not claim to be the sole sovereign: "California and its people are sovereign, too." He also warned that granting the request could invite either party to create chaos to disrupt the election process, and that more than 20,000 registered Californians could lose a right generations of Americans fought to preserve.

The dispute began earlier this month, when the Justice Department sued California, Secretary of State Shirley Weber and Los Angeles County registrar-recorder and county clerk Dean Logan. The government claimed about 20,000 suspected noncitizens were registered and had been sent mail ballots. California has more than 23 million registered voters. Officials were given 48 hours to review the list and ensure the ballots were not tabulated until citizenship could be confirmed. After California raised concerns about the list's accuracy, the government sued and asked for a temporary order requiring the sequestering of those ballots.

The department took the matter to the 9th Circuit on Friday. On Monday, the appeals court ruled 2-1 against it, finding the administration had not given the district judge adequate opportunity to consider temporary relief. Carter held a hearing Tuesday, where he pressed prosecutors on why they could not simply seek indictments after the election of anyone they believe voted illegally, noting that returned ballot envelopes carry identifying information. "The remedy as a good prosecutor is to make sure these people are prosecuted," he said. He called the requested change a "monumental change" to election procedures while voting is underway.

The accuracy of the list was central. Carter called the government's methodology "vague" and said he could not conclude the process was credible. Los Angeles County lawyers said only just over 7,000 of the 20,000 records had addresses in the county. In a 200-record sample, more than half matched registrations that were canceled or inactive, meaning no ballot was mailed. Among the sample voters who reported a birthplace, just over 38% said they were born in the U.S. The county also said it would be impossible to hand-review ballot envelopes to find those on the list before the election period ends. California's lawyers added that the government had not been clear about how or when it obtained the public voter list, and the administration said it enhances that data with a third-party service.

The government disputed the county's findings. Nicolas Bartell, an official with U.S. Citizenship and Immigration Services, said in a declaration that the agency reviewed immigration records for the same 200 people and found none were born in the U.S. He also acknowledged that in its ongoing analysis, USCIS identified roughly 189 records with minor data discrepancies on the list sent to California.

Bill Essayli, the top federal prosecutor in Los Angeles, argued the state risks diluting Americans' votes by potentially commingling lawful ballots with those of alleged noncitizens, and stressed the government was not asking to void any ballots. California officials called the suit a "reckless political stunt." Deputy Attorney General Anne Bellows said the requested order would be "incredibly disruptive" and a "recipe for disenfranchisement." Federal and California law bar noncitizens from voting, though such cases are rare.

Voting is well along: ballots went out in early October, more than 3.5 million have come back statewide, and Los Angeles County has processed over 550,000. The Justice Department says it will appeal and seek an emergency order from the 9th Circuit. Similar efforts are under way elsewhere: federal prosecutors in Washington state have asked officials to set aside ballots from more than 400 alleged noncitizens, and the administration has sued Alaska officials seeking to block certification of Senate results if Sen. Dan Sullivan loses.