Judge Rejects Bid to Set Aside California Ballots

A federal judge in Los Angeles refused on Wednesday, October 28, to order California to set aside California ballots tied to voters the Justice Department describes as likely noncitizens. The request covered more than twenty thousand registered voters, according to the ruling. U.S. District Judge David O. Carter denied a temporary restraining order sought by the department, leaving ballot processing under existing state rules while the department appeals to the Ninth Circuit.

The Justice Department sued California, Secretary of State Shirley Weber and Los Angeles County Registrar Dean Logan on October 15. It asked the court to require officials to hold the flagged mail ballots apart until citizenship could be checked. The department had given state and county officials 48 hours to review the list or set the ballots aside, according to court reporting. Weber and Logan declined to comply, and the department then sought emergency relief from the court.

In a 26-page order, Carter wrote that the request struck at the division of election authority between states and the federal government. "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," Carter wrote. He warned that granting the request would wreak havoc and disrupt an election already under way, create a chilling effect on election workers and voters, and discount the votes of United States citizens. Carter also found that the federal government likely lacked standing to seek the order, and that state officials cannot be commandeered to enforce federal law.

Why the judge questioned the list

Carter said the government had not shown that its list could be trusted. In July, the Department of Homeland Security told Weber that a preliminary review suggested as many as one hundred ninety thousand eight hundred and thirty-two noncitizens were registered to vote in the state. Three months later, the administration presented a far smaller list, but Carter wrote that it had not explained how the larger figure was reduced, what matching rules it used, or what error rates applied. The department revealed only the night before the hearing that it had relied on LexisNexis data, and Carter wrote that it remained unknown how that platform linked names to Social Security numbers that are not on the California public voter file.

The judge pointed to Nevada as a warning about the method. There, a federal count of fifteen thousand nine hundred and three possible noncitizens fell to one hundred and eighty-five after review, and state officials later said every voter on the revised list was a citizen, according to reporting on the ruling. Carter also noted the practical problem in California: Los Angeles County had processed more than three hundred thirty-one thousand mail ballots by October 20, and its system had no function for setting aside ballots for designated voters. By the time of the ruling, more than 3.7 million people had voted in California and more than five hundred thousand ballots had already been counted, according to reporting by the Associated Press.

California officials argued that complying would risk disenfranchising eligible voters. Attorney General Rob Bonta called the decision an important victory, while the state argued that the federal assertions relied on suspect data. Carter agreed that segregation would carry lasting harm, writing that a ballot segregated would in effect be a ballot removed, because neither the department nor the county could finish citizenship checks before results are certified.

What happens next in the appeal

The Justice Department filed a notice of appeal on the evening of the ruling and said it would seek an emergency order from the Ninth Circuit. First Assistant U.S. Attorney Bill Essayli said the Solicitor General had authorized an immediate appeal, and the department argued that once a mail ballot has been processed it cannot be undone. The department has asked the appeals court to rule by Friday, October 30, according to Democracy Docket. An earlier attempt to reach the appeals court had already failed: on Monday, a Ninth Circuit panel dismissed the department's first appeal because Carter had not yet ruled.

On Thursday, October 29, Carter appointed Daniel B. Garrie as a technical special master to assist the court in developing the factual record. He set an expedited hearing for November 13 on motions to dismiss the case and on the department's request for a preliminary injunction. By November 6, all parties must submit witness lists, including experts, on the reliability of the October list and the methodology used to produce it, and those witnesses must be ready to testify at the hearing. The department and the state and county will split the special master's costs evenly. Voting-rights groups that joined the case, including LULAC and the NAACP, filed an opposition to the department's request for an injunction during the appeal.

Carter pointed to criminal prosecution as the proper remedy for unlawful voting, noting that the department had brought charges against twenty-eight people in California under the federal voting law on the same day it sought the emergency order. For now, California counties continue to process ballots under existing state procedures while the appeal is pending, with Election Day set for November 3. Sources: Reason and Reuters.