Judge Rejects DOJ Bid to Segregate 20,000 California Mail Ballots, Warning of 'Havoc'

On Wednesday, a federal judge in California turned away the Justice Department's attempt to step into a vote count already underway. Judge David O. Carter of the Central District of California wrote that the administration's request to set aside as many as 20,000 mail ballots, so the citizenship of the voters behind them could be checked, would "wreak havoc and disrupt the election that is already underway."

Carter ruled the day after a lengthy hearing, in a 26-page order. He said the department's effort to question whether thousands of Californians are noncitizens would infringe the state's right to run its own election and undermine decades of voting and civil rights protections. A Clinton appointee, he also wrote that the request would "create a chilling effect on election workers and voters alike, and discount the votes of United States citizens."

The department's emergency lawsuit rested on what it described as a purchased list of California voters, matched against other government data. Carter was blunt about the method. People who have met the state's registration requirements, he wrote, "must not be deprived of a core right merely because of unfounded allegations stemming from a procedure rife with uncertainty and errors."

He also noted that the government is not without options. Federal prosecutors can charge noncitizens accused of voting unlawfully. The United States, he wrote, had not explained why California continuing to count ballots would impair any present or future prosecution, adding that federal law is enforced by the federal government and that state participation or its absence does not affect how Washington allocates its own officers and resources.

The Justice Department filed notice Wednesday evening that it was appealing. This case has already been to the appeals court once. Last week, after Carter did not rule as fast as the administration wanted, the department went to the US 9th Circuit Court of Appeals. In a 2-1 decision, that court sent the matter back, calling the appeal premature. But the two judges in the majority also indicated they thought the department's arguments for segregating ballots would likely fail on the merits.

Election law experts have widely seen the case as a test of how far the department might go to disrupt or dispute a state's counting process. For months the administration had signaled it would build lists, using controversial federal data-matching programs, of people it believes may be unlawfully registered, and hand them to election officials with threats of prosecution or other legal action if officials did not act. Since suing California, the department has presented a similar list to Washington state election officials. Earlier this year it made sweeping claims about noncitizens registered to vote in three other Democratic-led states.

Key details of how California's list was analyzed remain secret. The Department of Homeland Security claimed in July that 190,000 registered California voters could be ineligible foreigners. It then gave election officials a list of 20,000 supposedly "high confidence" matches, on a thumb drive with the password handwritten on a Post-it note, and allowed the state 48 hours to act before filing suit.

Local election officials who have started reviewing the list say a significant portion of the names are either not on their rolls or are in suspended status, meaning those people would not receive a mail ballot. They have also seen signs that some people the department labels likely noncitizens were born in the United States, although DHS officials disputed that in court declarations.

With the appeal filed, attention turns back to the 9th Circuit, which has already signaled skepticism, and to whether counting continues undisturbed while it decides.