US judge rejects DOJ bid to block 20,000 California mail ballots before midterms

A ruling six days before the vote

On Wednesday, 28 October, U.S. District Judge David O. Carter of the Central District of California turned down a Justice Department request to stop California from processing about 20,000 mail-in ballots. The department wanted those ballots set aside because it considers their senders "likely noncitizens", with the midterm elections set for 3 November. The order was issued on Wednesday evening, 28 October, and Carter, a Clinton appointee, ruled that no immediate action was necessary. He warned that the demand for urgent action would wreak havoc on an election already under way, chill election workers and voters, and discount the votes of citizens. He had indicated that view at a hearing on Tuesday, 27 October.

“If the Executive can discount votes and threaten an ongoing election due to unproven allegations, then our democracy is in danger.”

The case is tied to President Donald Trump's claim that large numbers of noncitizens have voted illegally in U.S. elections, although multiple studies have found such fraud to be exceedingly rare.

What the Justice Department asked for

The Justice Department filed its lawsuit on 15 October. It handed authorities in Los Angeles County and California's secretary of state a storage unit with data on more than 20,000 alleged noncitizens, demanding that their ballots be segregated within 48 hours. The list was built by matching immigration and Social Security databases. California officials dispute its reliability, and a preliminary Los Angeles County analysis found that many people on it lack active voter registrations. State and local officials also argue that setting ballots aside days before Election Day, while mail ballots are already being processed, would be unlawful, infeasible and would disenfranchise eligible voters. Carter questioned the method directly, recalling that the Department of Homeland Security first flagged nearly 16,000 suspected noncitizens in Nevada, a figure cut to 185 after review, and all of those 185 turned out to be legal U.S. citizens.

A wider pattern of federal lawsuits

Carter pointed to at least 31 lawsuits the administration has filed in federal courts across the country seeking complete voter rolls from states, which he described as a broad, ongoing pattern of attempted election interference. He put the litigation record bluntly in the ruling:

“Out of the twenty-six cases that have been decided, the D.O.J. has prevailed in precisely zero,”

The department has also used other tools. On Monday, 26 October, federal prosecutors asked Washington state election officials to review a list of 400 registered voters the department believes are likely noncitizens. DOJ officials say dozens of people have been charged for registering or voting without US citizenship. Carter said the federal government can address the issue by continuing to charge people with illegally voting as noncitizens.

Appeal and next steps

Closing his order, Carter wrote:

“Once a vote is segregated, lasting harm has occurred.”

The Justice Department filed a notice of appeal late on Wednesday, 28 October, shortly after the ruling.

The midterm elections are set for 3 November, and processing of mail ballots in California is already under way.