A federal judge in Los Angeles on Wednesday, October 28, refused the Justice Department's request to stop California from processing the ballots of up to 20,000 people the department says are likely noncitizens, writing that the request "would wreak havoc and disrupt the election that is already underway."
U.S. District Judge David O. Carter denied the government's request for a temporary restraining order a day after a hearing in which he pressed prosecutors on why they did not simply charge anyone who voted illegally, as we reported in Appeals Court Tosses DOJ Bid on 20,000 California Ballots. The department sued California and Los Angeles County on October 15, after state officials rejected a 48 hour deadline to review its list of "likely noncitizens," Democracy Docket reported.
What the order says
Carter found the government unlikely to win, according to Democracy Docket's account of the order. He concluded the department likely lacks standing and a cause of action, and that the federal criminal ban on noncitizen voting does not let it override California's rules for processing ballots. He said the emergency was "solely due to its own neglect."
The core of the ruling is about harm. "Eroded trust in our democracy is irreparable. Once a vote is segregated, lasting harm has occurred," Carter wrote, the Associated Press reported. He reasoned that pulling ballots aside would force counties to invent new sorting methods and would work like a purge of voters, which federal law bars within 90 days of an election. He also wrote: "But California and its people are sovereign, too." And he ended with a refusal: "This Court declines to be a party to such process."
Carter, who had floated appointing a special master to test how the list was built, did not do so in this order, according to the AP. He did address the letters suggesting election workers could face prosecution. "These threats must stop," he wrote, per Democracy Docket. The department remains free to prosecute individuals when it has evidence of illegal voting. The AP noted that federal prosecutors have arrested 28 noncitizens accused of illegal voting or registration.
The government's side
First Assistant U.S. Attorney Bill Essayli argued that segregating a ballot does not prevent it from being counted later and that the request was meant to preserve the status quo. "This ongoing emergency disenfranchises American citizens through dilution," he said, according to the AP. Prosecutors said they would appeal immediately and filed a second appeal to the Ninth Circuit on Wednesday evening. The first appeal was dismissed on October 26 because the government had not given Carter a chance to rule. Essayli's own authority is contested, as covered in Judge Rules Bill Essayli Is Unlawfully Serving as Los Angeles's De Facto U.S. Attorney.
Our analysis: the scale of what was asked
The newsroom's arithmetic, using figures reported by the AP: California mailed ballots to all 23 million registered voters, and more than 3.7 million had already voted. The 20,000 names on the federal list are about 0.09% of the state's registered voters, roughly 1 in every 1,150. To hold back that sliver, counties would have had to stop and sort ballots in a count where more than 500,000 ballots had already been processed, meaning envelopes verified and ballots removed. Los Angeles County officials testified that once that happens it is nearly impossible to match a ballot back to a voter. That is the practical reason Carter called the harm irreversible.
The same list problem showed up in Washington state this week. The department asked Washington to set aside ballots from more than 400 people, and Secretary of State Steve Hobbs replied that a preliminary review found U.S. citizens on the list. "This list includes United States citizens and is not reliable," Hobbs wrote, Democracy Docket reported.
What comes next
The Ninth Circuit now has the second appeal, five days before the November 3 election. The earlier panel signaled doubts about the merits, and the Purcell principle, which discourages courts from changing election rules close to an election, cuts against last minute orders. The fight is one of several federal election cases running at once, including the Alaska certification suit covered in Alaska and Peltola Ask Judge to Toss DOJ Suit Over the Two Dan Sullivans.
Two Taps News stories summarize reporting and the analysis discussed on Two Taps and Friends. They are not legal advice. Read our standards.
