A federal judge on Tuesday declined to immediately order California to set aside roughly 20,000 mail ballots The Justice Department said were linked to people likely noncitizens.
Judge David O. Carter of the U.S. District Court, signaled skepticism about the request and timing, which falls about a week before the Nov. 3 midterm, said he intends to rule by Wednesday on how the case will move forward and described a plan to appoint a special master to look into how the list was assembled.
The Ninth Circuit previously dismissed DOJ’s appeal Monday, ruling the department had not given the district court enough time to consider its request for an emergency restraining order.
DOJ sued California, Secretary of State Shirley Weber and Los Angeles County Registrar Dean Logan on Oct. 15. It wants the state to set aside roughly 20,000 mail ballots it claims are linked to people likely noncitizens, and not count ballots received from people on the list until their citizenship is verified.
In the department’s own words two Department of Homeland Security agencies: U.S. Citizenship and Immigration Services and Homeland Security Investigations, had narrowed a preliminary pool of more than 175,000 potential noncitizen voters to just over 20,000 registered Californians who were sent ballots.
DOJ told the courts that every minute of ballot processing without segregation risks untraceable dilution of citizens’ votes.
Carter questioned that the department already has a tool to address noncitizen voting under federal criminal law, and sought to know why it left out using it.
“You’ve got a remedy for goodness sake. Go out and indict,” Judge Carter said.
How the list was built is the core of the dispute the judge said he wants examined.
According to declarations cited in the department’s filings, the agencies matched the state voter roll against immigration records using third-party data, screened out people identifiable as citizens or deceased through State Department and Social Security Administration data, and had investigators manually review matches.
After the steps, the list was sent to California on Oct. 13 with a 48-hour deadline for review.
At issue, California refused. The citizenship of the people on the list has not been determined by the court.
California and Los Angeles officials dispute the list. Los Angeles said a preliminary review of about 200 names found a high percentage listed as U.S.-born and many with no voting history, while the state said sampled names included canceled or inactive registrations.
In arguments, the department pushed that further checks reduced apparent errors, and that it holds immigration files for many of the names, and that the list reflects the group it is most confident about without claiming it is perfect.
Furthermore, it said 28 foreign nationals it announced charges against on Oct. 19 each appear on the list.
The legal fight follows from that dispute.
The department says that federal law barring noncitizens from voting, plus the Supremacy Clause, bars California from counting the ballots without verification.
Meanwhile, California disagrees that the Constitution leaves elections to the states, the request is too late and would create chaos, and it cannot pull ballots mid-process without risking eligible voters.
As the hearing closed, Carter addressed recent Justice Department letters warning California officials that they could face prosecution for counting ballots from the list, saying:
“This court believes it would be wise that any threats to state and county elected employees cease immediately.”
The court has not decided whether any ballots will be set aside.
