A federal judge in California on Wednesday refused the Trump administration’s request to segregate 20,000 mail-in ballots from individuals it alleges are noncitizens.
“This request violates longstanding constitutional principles mandating that states have control over their elections,” U.S. District Judge David Carter wrote. “If Plaintiff’s last-minute request for relief were granted, either party could create chaos for their own political purposes to disrupt the election process.”
What the administration was asking for, he wrote, “would wreak havoc and disrupt the election that is already underway, create a chilling effect on election workers and voters alike, and discount the votes of United States citizens.”
He also questioned whether the government’s claims of over 20,000 noncitizen voters were accurate.
“Given the vagueness of Plaintiff’s descriptions of its procedures and the unreliability of its similar claims in other states, the Court cannot conclude that Plaintiff’s process is credible,” Carter wrote, pointing to similar allegations the administration had made in a neighboring state.
“In Nevada, DHS initially identified up to 15,903 registered voters as noncitizens based on ‘high-confidence’ matches, but later reduced that number to 6,218, and then to 185 after conducting its manual review. Nevada officials later confirmed that all 185 individuals were citizens,” the judge wrote.
“Had Nevada officials accepted Plaintiff’s allegations there as true, 185 citizens would have been deprived of their vote. This Court will not deprive Californians who have met the requirements for voter registration of their fundamental right because of Plaintiff’s unfounded allegations.”
The Justice Department filed the suit Oct. 15, seeking a court order that the state “set aside vote-by-mail ballots from persons identified by the Federal Government likely to be noncitizens” and not count them until their citizenship is confirmed.
The department said it had compiled “a list of over 20,000 names of people” the government “believes are likely non-citizens.”
Attorneys for the state countered that the government’s numbers are unreliable. In a July letter, it put the number of suspect voters at 190,000 and has refused to release information about how it has generated its lists.
“Where is the evidence?” an attorney representing California, Christina McCall, said at the hearing Tuesday, calling the government’s allegations “vague” and “not reliable.”
Another attorney for the state, Anne Bellows, told the judge “the stakes here are enormous,” arguing the government was trying to force California to initiate an unclear investigation into the citizenship of tens of thousands of people without any clear standards shortly before an election.
It “is a recipe for disenfranchisement,” Bellows said.
First Assistant U.S. Attorney Bill Essayli told Carter: “We’re not telling California what they have to do. We’re telling them what they can’t do.”
Essayli said that once the state is made aware of potential noncitizens on its voter rolls, “they need to do something.”
“What they cannot do is do nothing and proceed to count the votes,” he said.
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The judge said that if the government believes there is noncitizen voting, which is a crime, it should bring charges.
“Don’t you have the power of indictments?” Carter asked Essayli. “You brought 28 indictments,” he said, referring to a recent announcement by prosecutors of people who have been found to have voted illegally in California in recent years. “You may find others. You have the right to bring that indictment against them.”
“You’ve got a remedy, for goodness’ sakes,” Carter said. “Go out and indict.”
Essayli on Wednesday bashed the judge’s ruling and said an appeal is underway.
“Every day, more ballots are processed by election officials. This ongoing emergency disenfranchises American citizens through dilution,” he said in a statement. “The Solicitor General authorized an immediate appeal. We filed our Notice of Appeal and will immediately seek an emergency order from the Ninth Circuit.”
The Justice Department has already been to a federal appeals court once in the case. It filed a motion to expedite the case to the 9th U.S. Circuit Court of Appeals last week, after Carter did not act on its request to rule in the matter by Thursday.
The appeals court held an emergency hearing Sunday and ruled against the administration 2-1 on Monday.
The majority found it did not have jurisdiction because Carter had not yet ruled, but it found the government’s “claimed emergency” was at least partly “a self-constructed one.”
“At least part of the delay here is attributable to the United States’s own delay in filing suit,” Circuit Judge Mark Bennett wrote in the ruling.
“The United States has taken issue with California’s voter rolls since at least July 16, when it sent a letter to California’s secretary of state citing its ‘[p]reliminary’ analysis of California’s voter rolls. And neither California’s law permitting the processing of ballots twenty-nine days before an election, nor its law providing for the issuance of mail-in ballots to registered voters, is new,” he wrote.
Circuit Judge Gabriel Sanchez wrote in a concurring opinion that the government was asking the “court to dictate to a state legislature a matter squarely within the state’s traditional domain, upending the state’s policies in this regard and inviting disorder and confusion for voters and election officials alike.”
The dissenting judge, Trump appointee Patrick Bumatay, wrote, “We should’ve granted the federal government relief — federal law precludes California from commingling ballots likely cast by aliens with legitimate ballots, because it encourages and induces illegal voting.”
