Federal Judge Blocks DOJ Effort to Sequester 20,000 California Ballots

A federal judge refused to force California to set aside mailed ballots from more than 20,000 people the Justice Department says are noncitizens. In a 26-page order issued late Wednesday, U.S. District Judge David Carter said Washington cannot dictate how California counts its votes. The judge, an appointee of former President Bill Clinton, opened by referring back to Ronald Reagan, who called the right to vote the crown jewel of American liberties. Granting the request would upend a vote already in progress, scare off the people running it, and discard ballots citizens had lawfully cast, he wrote. Congress never handed the executive branch the power it was claiming, the judge found. The criminal statute the department leaned on makes it a crime for a noncitizen to vote, but says nothing about forcing states to segregate ballots or stop counting. A separate law bars systematic removals from the rolls inside 90 days of an election, and he said temporary segregation amounts to the same thing. If prosecutors have evidence someone voted illegally, he wrote, the remedy is an indictment. He noted the department charged 28 people the same day it asked him for the emergency order. The Justice Department appealed immediately, and a top federal prosecutor in Los Angeles said the solicitor general authorized the move. He argued that every day more ballots get processed, legal votes are diluted by illegal ones. The judge threw out that dilution theory, calling it too thin to give the government standing to sue. California mails a ballot to all 23 million of its registered voters. More than 3.5 million had come back by the time of the ruling, and Los Angeles County alone had processed over 550,000, which left those ballots out of their envelopes and untraceable. The department gave officials 48 hours in mid-October to check the names, then sued when they declined. Prosecutors say they built the list by running California’s public voter file against immigration, passport, and Social Security files, and they call 20,000 a floor rather than a ceiling. Los Angeles County’s own review turned up problems. Of 200 records it sampled, 42.9 percent were already cancelled and 4.6 percent inactive. And 71.2 percent of the full list had never voted. The judge said the department disclosed no error rate and had cut its own estimate from 190,832 names to roughly 20,000. Prosecutors say those 28 were green card holders and all of them appeared on the list. Eleven have been arrested. Monday’s appeals court ruling went the same way, 2-1, though Judge Patrick Bumatay dissented, saying Washington has its own sovereign stake in federal elections.