The Trump administration and California election officials remain locked in a legal battle over mail ballots, with a federal judge set to hear arguments – and possibly rule – Tuesday, Oct. 27, on a U.S. Department of Justice request that the state temporarily set aside 20,000 ballots until the citizenship status of those voters can be confirmed.
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U.S. District Judge David O. Carter has said he expects to rule “promptly” on a case that’s being closely watched around the country, following Tuesday’s hearing in downtown Los Angeles – exactly one week out from Election Day.
The same judge – who previously dismissed a request by the Justice Department to require California to hand over its full voter registration list to the federal government – is expected to reject the Justice Department’s request for a temporary restraining order.
The hearing with Carter comes two days after a three-judge panel for the 9th Circuit Court of Appeals took the rare step of holding a Sunday session – even before Carter has ruled on the matter – in response to a pre-emptive appeal by a Justice Department which had hoped for a decision from Carter sooner.
During Sunday’s proceeding, a judge appointed by President Donald Trump cast doubt on the DOJ’s request for a temporary restraining order to separate out the ballots of voters the Trump administration suspects are non-citizens.
“It seems to me you want us to issue an injunction that is entirely inconsistent with the law the California Legislature has adopted,” Judge Mark Bennett, the Trump appointee, said at the appellate hearing. “How can we do that?”
“Congress and the California Legislature have said non-citizens can’t vote. This lawsuit is about, ‘We don’t like the way you’re sorting citizens from non-citizens.’ I just don’t see (federal law) telling California how to do the sorting.”
All three judges also raised concerns that the Justice Department had acted too quickly by appealing to the 9th Circuit before Carter had ruled on the matter.
The Trump administration has been focused on rooting out voting by non-U.S. citizens in the lead-up to the midterm elections, even though data shows that such illegal voting is extremely rare, difficult to prove and hasn’t been shown to change the outcome of races.
Two weeks ago, the Justice Department sent a letter to the L.A. County Registrar of Voters office, seeking cooperation in identifying individuals on a list that the federal government believes are “likely noncitizens” yet were sent a mail ballot in California.
The letter asked the registrar’s office to set aside the ballots of individuals whose U.S. citizenship couldn’t be verified – either by not sending them a ballot if one hadn’t been sent yet or to withhold from processing it if the person returned a marked ballot – until their citizenship could be confirmed.
L.A. County Registrar Dean Logan said the letter – which his office posted publicly – included a USB drive which supposedly contained the list of suspected noncitizen voters and a handwritten note with the password for the USB drive.
Logan said at the time that his office, which was consulting with the California secretary of state and attorney general, hadn’t yet accessed the drive because it conflicted with “established data privacy and information security protocols” and he did not consider the device “a secure medium.” It was unclear how many people on the list are registered in L.A. County and how many are outside the county.
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Later that week, the DOJ sued California election officials, asking a judge to prohibit the state from counting the mail-in ballots of 20,000 individuals in the state until their citizenship status could be verified.
California Secretary of State Shirley Weber said in a letter to the DOJ that the federal government hadn’t provided evidence that 20,000 names on the state’s voter rolls belong to noncitizens.
Federal prosecutors then sent letters to other county offices across California on Friday, similar to what had been sent to the L.A. County registrar’s office. The letters demanded that local election officials – including ones in Orange and San Bernardino counties – set aside and verify ballots the Justice Department said may belong to noncitizens.
Although the DOJ sent a letter to an Orange County official asking for help in reviewing the citizenship status of 1,754 people within 48 hours, it delivered the letter to the wrong person, according to county officials.
Orange County Registrar Bob Page told Southern California News Group on Monday, Oct. 26, that neither his office nor Orange County’s office of county counsel had heard back from the Justice Department regarding a letter and USB drive that was hand-delivered late Friday to O.C. Clerk-Recorder Hugh Nguyen.
The OC counsel informed the Justice Department in a letter Saturday that it “mistakenly sent” the items to Nguyen, even though Page’s office is the one responsible for conducting elections and maintaining voter registration records.
County counsel said in its letter that Nguyen retained the USB drive “in a secure manner” pending further instructions from the DOJ and asked whether a Justice Department official should retrieve it in person or if it should be sent back to the DOJ by mail.
Page said Monday afternoon that the Justice Department had so far not responded about how to handle custody of the letter or the USB drive, or how Page’s office should proceed given the 48-hour timeline had passed.
“This is a deadline that’s not enforceable, it’s just a deadline they’re saying in their letter,” he said. “Bottom line is, we don’t want non-citizens to be voting in this election, but at this point we don’t know how reliable their list for Orange County is. We haven’t had a chance to look at it.”
Meanwhile, in San Bernardino County, Valerie Nevarez, a registrar of voters spokesperson, confirmed Monday that the county also received a letter from the Justice Department asking it to set aside ballots. She didn’t say how many.
Nevarez said the registrar’s office is “currently reviewing it with counsel and the Secretary of State’s Office.”
Riverside County, on the other hand, “has not received any correspondence or directives from the DOJ regarding setting aside mail ballots as of” Monday, Elizabeth Florer, a spokesperson for the county, said via email.
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City News Service and The Associated Press contributed reporting.