Courts reject Justice Department bid to set aside California ballots before midterms

Federal courts have rejected the US Justice Department’s attempt to make California set aside about 20,000 ballots that the department links to suspected noncitizens, days before the November 3 midterm elections. The department has also asked Washington state to hold back ballots cast by more than 400 people it suspects were registered without US citizenship. Officials in both states have criticised the requests.

California: the request refused at every step

The department filed suit on October 15 against Shirley Weber, California’s secretary of state, and Dean Logan, the Los Angeles County registrar-recorder. It asked for ballots tied to roughly 20,000 people it calls “likely” noncitizens to be set aside and left uncounted, according to Al Jazeera, which noted that the administration has not publicly explained how the list was compiled. The department argued that counting the ballots could cause irreversible harm, Hindustan Times and NPR reported.

On Monday, October 26, the Ninth Circuit Court of Appeals declined an emergency request from the department by a 2-1 vote, saying lower courts had not been given enough time to review the case, Al Jazeera reported. On Wednesday evening, October 28, US District Judge David Carter denied the department’s request for a temporary restraining order, NPR reported. NPR added that the judge said the department could still bring charges against individuals who vote illegally.

On Friday, October 30, the Ninth Circuit rejected the request again, also by 2-1, according to Al Jazeera and the Guardian. Al Jazeera reported that the majority, Judges Mark Bennett and Gabriel Sanchez, wrote that granting it would risk disenfranchising eligible voters, while Judge Patrick Bumatay dissented and called it a “reasonable request”. The Guardian reported that the majority saw no workable way to identify and set aside particular voters’ ballots without potentially catastrophic effects on the whole system.

Late on Friday, US District Judge Trina Thompson in northern California issued a temporary restraining order in a case brought by labor unions and civil rights groups, the Guardian reported. It bars the Justice Department from threatening or coercing election workers to stop processing ballots, and from demanding that local officials segregate or leave uncounted ballots the government considers possibly cast illegally by immigrants. Millions of people have already voted in California, where the election ends on Tuesday, the Guardian said.

What each side says about the list

The reliability of the list is disputed. Los Angeles County officials said in a court filing that a sample of 200 records from it included canceled or inactive registrations, people with no voting history and voters who appeared to have been born in the United States, the Guardian and The Hindu reported. NPR reported that Nicolas Bartell, a senior official at US Citizenship and Immigration Services, contested that in court filings, saying his office’s review found none of those people were US-born, while acknowledging that four might have a claim to US citizenship. A University of Delaware political scientist engaged as an expert by voting-rights groups told the court that the agency’s matching method was likely to be unreliable, NPR said.

The Justice Department said in a statement that federal law prohibits noncitizens from voting and that enforcing the law is the department’s job, the Guardian reported. Audits and investigations have shown voting by noncitizens to be extremely rare, according to NPR.

Washington state

On Monday, October 26, the department asked Washington Secretary of State Steve Hobbs to set aside any ballots that more than 400 people it alleges are registered without US citizenship might cast, until the state can confirm they are eligible to vote, the Guardian and The Hindu reported. The department said it had identified 1,500 votes cast by those people in earlier elections. Charles Neil Floyd, the acting US attorney in Seattle, said 405 voters had been identified so far and that he believed this was only a fraction of the total, the Guardian reported. Both outlets said the department told Washington that some of the people it suspects may have since become naturalised citizens.

Hobbs said he was reviewing the request. The Guardian reported that he described its timing, one week before the election, as intended to cast unfounded suspicion on the results.