Justice Department drops lawsuit seeking to block 20,000 California ballots after Supreme Court rejection

The Justice Department has abandoned its lawsuit seeking to force California to set aside roughly 20,000 mail ballots the department said were cast by noncitizens, filing a notice of voluntary dismissal on Friday, four days after the Supreme Court refused to intervene on the department's behalf. The withdrawal closes out a three-week legal fight that reached the Supreme Court on the eve of Election Day without ever reaching a ruling on the merits.

The case, United States v. California, began on October 15, when the department sued the state and Los Angeles County after Secretary of State Shirley Weber and county election officials refused a federal demand to segregate ballots belonging to voters the government had flagged, using a list it said showed likely noncitizen registration. California called the list unreliable and the lawsuit a political stunt; the department called it a necessary check on the integrity of the vote.

A lawsuit that lost at every stop

The dispute moved through the courts at a pace unusual even for election-season litigation. U.S. District Judge David O. Carter took over the matter on October 21 and on October 28 rejected the department's request for an emergency order, finding no feasible way to identify and segregate the ballots of specific individuals without disrupting ballot processing already under way. The Ninth Circuit Court of Appeals turned the department away twice, first on October 26 for trying to skip the district court altogether, then again on October 30 in a 2-1 decision with Judge Patrick Bumatay dissenting.

Solicitor General John Sauer took the fight to the Supreme Court on November 2, asking the justices for an injunction pending appeal. Justice Elena Kagan, who handles emergency filings from the Ninth Circuit, referred the request to the full Court, which denied the application the same day in a one-line order, with no justice noting a dissent. The order, listed under docket number 26A624, gave no explanation, a common practice on the Court's emergency docket but one that left both sides to read the tea leaves of a unanimous, unsigned rebuff delivered one day before California's November 3 general election.

By the numbers

The department's list named more than 20,000 registered voters it identified as possible noncitizens, a figure that both the Secretary of State's office and the Los Angeles County Registrar-Recorder disputed almost immediately. In a filing opposing the department's request, the Secretary of State's office said a county review of a sample of the federal data turned up significant accuracy problems, including entries that did not match active, mailed ballots at all. More than 5 million mail ballots had already been cast statewide by the time the department sought its first emergency order, a volume officials said made any late segregation of individual ballots logistically impossible.

The ballot dispute ran alongside a separate but related Justice Department initiative, which prosecutors have called Operation Protect the Vote. Under that effort, federal prosecutors charged 28 people in early October with alleged voter-registration fraud, and added six more charges in Los Angeles County for allegedly registering to vote unlawfully or lying on government forms, according to reporting on the department's dismissal filing. Those prosecutions are not part of the dismissed civil case and are continuing.

Who is affected

The immediate effect of the dismissal is that the roughly 20,000 contested ballots will be counted under California's ordinary procedures rather than set aside for independent verification, since the state's standard processing had already folded them into the broader tally by the time the department moved to withdraw. Los Angeles County Registrar-Recorder Dean C. Logan had argued throughout the litigation that election rules cannot be arbitrarily changed midway through an election, a position state officials echoed in asking Judge Carter to deny the department's request. California had set a December 3 deadline for Los Angeles County to certify its results, a timeline that would have been jeopardized had a segregation order been granted this late in the count.

More broadly, the episode is the latest in a string of courtroom defeats for the administration's efforts to assert federal oversight of state-run elections. In January, Judge Carter dismissed a separate Justice Department suit that had sought the names and personal data of California's 23 million registered voters, writing in a 33-page ruling that the taking of democracy does not occur in one fell swoop; it is chipped away piece by piece until there is nothing left.

Reaction from both sides

California's Secretary of State framed the Supreme Court's refusal to intervene, and the department's subsequent dismissal, as vindication. Weber said in a statement after the November 2 order that millions of Californians could now focus on the most important task at hand, adding: "The time to vote is now!" Her office had earlier described the lawsuit, in a filing responding to the department's demands, as at best a reckless political stunt, and warned that at worst it threatened to disenfranchise thousands of Californians this election.

California will not abandon the sacrifices of those who fought, at great expense, for our right to vote.

Congressional Democrats were sharply critical of the department's handling of the case. In its filing withdrawing the suit, Justice Department attorneys did not concede any legal error, instead arguing the case had become moot because the disputed ballots could no longer practically be separated from the rest of the count before a preliminary-injunction hearing that had been scheduled for November 13. The department said in a statement accompanying the filing that it was evaluating how to best ensure that American votes are protected, without identifying any specific follow-up action.

What comes next

The civil case is now closed, dismissed under a federal procedural rule that allows a plaintiff to withdraw before the opposing side files an answer or a motion for summary judgment, meaning it ends without any court ruling on whether the department's underlying legal theory, that a federal criminal statute barring noncitizen voting gives it authority to order states to withhold ballots, was valid in the first place. That leaves the question unresolved for future elections, even as this cycle's dispute has ended.

The criminal prosecutions brought under Operation Protect the Vote continue independently of the civil suit, and the department has said it deployed roughly 1,000 election monitors nationwide, including in Los Angeles, Alameda, Sacramento and San Diego counties. Los Angeles County's certification of its November 3 results remains on track for the state's December 3 deadline. Whether the department pursues a new legal vehicle to challenge noncitizen registration in California is likely to be one of the first tests of how the administration responds to a midterm cycle in which its election-related litigation has largely failed in court.