A federal judge has denied an unprecedented, emergency request by the Department of Justice to segregate thousands of California ballots in the midterm elections.
The Justice Department wants California election officials to stop processing ballots pertaining to 20,000 individuals that federal officials say are "likely" noncitizens.
State and local officials in California have countered that the DOJ's list of "likely" noncitizens is unreliable, with a preliminary analysis by Los Angeles County showing that many on the list do not have active voter registrations. The officials also claim that setting aside ballots just days before Election Day, when voting and processing mailed ballots are already underway, would be unlawful and infeasible and would disenfranchise eligible voters.
In his 26-page ruling issued Wednesday evening, U.S. District Judge David Carter, a Clinton appointee, denied the Justice Department's request for a temporary restraining order to stop processing the ballots in question.
"Never before in American history has the federal government, on the eve of an election, sought to coerce a state and local government to abandon their own Constitutional elections procedures and bend to the will of the Executive Branch," he wrote.
Carter also expressed concern about taking action that could disenfranchise eligible voters and create chaos.
"Once a vote is segregated, lasting harm has occurred," Carter wrote at the conclusion of his order. "If the Executive can discount votes and threaten an ongoing election due to unproven allegations, then our democracy is in danger. This Court declines to be a party to such process."
The judge said that the federal government can address the issue by continuing to indict people for the crime of illegally voting as noncitizens. DOJ officials say in the last two months they have charged dozens of people for registering or voting without being a U.S. citizen.
The DOJ's lawsuit in California, which was filed Oct. 15, is among a flurry of unprecedented actions the department has waged in states close to Election Day, raising alarms about federal interference in state election procedures.
Like in California, on Monday federal prosecutors asked Washington state election officials to review a list of 400 registered voters the DOJ believes are likely noncitizens. And last week, the DOJ filed an unusual lawsuit in Alaska that seeks to stop the state from certifying the results in its Senate race if the Republican incumbent loses due to votes for a longshot candidate with a similar name who is accused of being a spoiler candidate.
In California's most recent motion to the court, state Attorney General Rob Bonta, a Democrat, asked the judge to take into account the circumstances of DOJ's demand. "This litigation is a precursor to further interference here in California," Bonta wrote. "The Court must not be drawn into this chilling degradation of democratic values and constitutional principles."
The Department of Justice is expected to appeal Carter's denial, and the matter could ultimately wind up before the U.S. Supreme Court.
The DOJ has argued the issue is urgent since ballots are already being processed. Once signatures are verified on returned mail ballot envelopes, the ballots are separated from their envelopes to retain voter confidentiality and it then becomes impossible to retrieve an ineligible ballot.
Federal prosecutors have argued that votes by noncitizens dilute the votes of U.S. citizens. Voting by noncitizens has been shown by audits and investigations to be extremely rare.
The accuracy of the DOJ's list of "likely" noncitizens is still an ongoing matter of dispute.
A Los Angeles county analysis of a small sample of people on the DOJ's list found that a significant portion had said in records they were born in the U.S. But U.S. Citizenship and Immigration Services senior official Nicolas Bartell contested that in recent court filings, writing that his office's review of those individuals found none were U.S.-born.
Bartell did acknowledge the review found four of those people "might have a claim to U.S. citizenship."
He also provided the court additional details about the federal government's methodology in creating the list in recent court filings.
But University of Delaware political scientist Kassra Oskooi, who has been tapped as an expert witness by voting rights groups who are intervening in the case, responded in his own declaration to the court that he believes USCIS's matching protocol "is likely to be unreliable."
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