Judge rejects Justice Department bid to withhold 20,000 California ballots days before election

A federal judge in California on Wednesday denied the Trump administration's request to force the state to set aside roughly 20,000 mail ballots from voters the Justice Department labels "likely noncitizens," ruling that doing so one week before the midterm election would "wreak havoc" on voting already underway.

U.S. District Judge David O. Carter, who sits in the Central District of California, issued a 26-page order rejecting the Justice Department's emergency request for a temporary restraining order. The department had asked Carter to require California election officials to segregate ballots tied to the disputed list and refuse to count them until the voters' citizenship could be verified. Carter wrote that "Never before in American history has the federal government, on the eve of an election" sought this kind of intervention, and concluded that "California and its people are sovereign, too."

A list that has shrunk, and a hard deadline

The fight traces back to an October 13 letter the Justice Department sent California Secretary of State Shirley Weber, giving her office 48 hours to review a list of roughly 20,000 people federal officials say are likely noncitizens registered to vote. Weber's office said it never received the list directly; it arrived instead on a password-protected thumb drive sent to the Los Angeles County registrar. In her public response, Weber said "California has robust state law requirements that only U.S. citizens can register to vote" and that her office had asked for the methodology behind the list without getting an answer.

The 20,000 figure itself has moved. The Department of Homeland Security had claimed over the summer that as many as 190,000 noncitizens were on California's rolls, a number state officials disputed outright before it was quietly revised down. Carter's order pointed to a cautionary precedent from Nevada, where a similar federal list of 15,903 "likely noncitizers" was winnowed down after review to 185 names — and all 185 turned out to be confirmed U.S. citizens.

When California did not comply, the Justice Department sued on October 15 in federal court, and followed with a criminal sweep it called "Operation Protect the Vote": on October 19, prosecutors charged 28 people, all lawful permanent residents, with offenses including false statements on naturalization paperwork and fraudulent voter registration, arresting 11 of them. California Attorney General Rob Bonta dismissed the arrests as "a drop in the bucket" against a state with more than 23.1 million registered voters, according to the state's most recent official registration report.

An appeals court round-trip before the ruling

Before Carter ruled, the department tried to leapfrog him. After he did not act by a deadline the government set, DOJ lawyers argued his silence amounted to a "constructive denial" and appealed directly to the Ninth U.S. Circuit Court of Appeals. On October 26, a divided three-judge panel dismissed that appeal 2-1, with the majority finding the department had not given Carter adequate time to consider the request and warning that forcing the state to act would be "inviting disorder and confusion for voters and election officials alike." Judge Patrick Bumatay dissented, arguing federal law bars California from "commingling ballots likely cast by aliens with legitimate ballots."

That sent the case back to Carter for a hearing on Tuesday, October 27 — one day before his ruling. At the hearing, Essayli pressed the government's position that the state could not simply continue counting ballots without acting on the list. First Assistant U.S. Attorney Bill Essayli told the court, "We're not telling California what they have to do. We're telling them what they can't do," adding, "What they cannot do is do nothing and proceed to count the votes." State attorney Christina McCall countered by asking simply, "Where is the evidence?" while attorney Anne Bellows called the request "a recipe for disenfranchisement," telling the court "the stakes here are enormous."

"Go out and indict." — Judge David O. Carter, telling federal prosecutors that suspected illegal voting should be pursued through criminal charges, not ballot segregation

Carter noted that prosecutors had already shown they could enforce election law criminally, pointing to the 28 indictments brought days earlier, and wrote that once a ballot is segregated from the count, "lasting harm has occurred" regardless of what a later court decides. His order concluded, "The Government's Application for Temporary Restraining Order is DENIED," adding that the court would not make itself "a party to such process."

A pattern beyond California

California is not the only state facing this kind of demand. On October 26, the Justice Department sent Washington state a similar request, asking officials there to set aside ballots from more than 400 people it says may be noncitizens. Washington Secretary of State Steve Hobbs rejected the demand, noting his state has documented only 15 instances of illegal voting since 1982, that one record on the DOJ's list dated to 1994, and that the department itself had acknowledged some people on the list had since become naturalized citizens.

Underlying both disputes is the National Voter Registration Act, the 1993 federal law that, among other things, bars states from running systematic voter list-maintenance programs in the 90 days before a federal election — a provision state officials in both California and Washington have cited as grounds for refusing the administration's demands this close to a vote.

What happens next

The ruling is not the end of the fight. Essayli said the Solicitor General had authorized an immediate appeal, and the department filed notice that it would again seek emergency relief from the Ninth Circuit. Bonta called Carter's ruling "an important victory" but added, "this fight is not over." With the November 3 general election a week away and county registrars continuing to process ballots under existing procedures, any further appellate action would have to move quickly to affect how votes are counted.