Los Angeles — A federal judge in Los Angeles heard arguments Tuesday over whether the Department of Justice can bar California from counting the ballots of some 20,000 people until it can confirm they are U.S. citizens.
The hearing before U.S. District Judge David O. Carter comes as voting has been underway for weeks in California in the midterm election that concludes next Tuesday. Alleged voting by noncitizens has been a key focus of President Donald Trump's administration as the country's voters decide which party will control Congress for the rest of his term, though available data indicates the illegal practice is exceedingly rare.
The Republican administration sued election officials in heavily Democratic California in mid-October, accusing them of failing to meet a 48-hour deadline to review its list of 20,000 names it alleged were likely noncitizens on the state's voter rolls.
The Justice Department made a similar request in Washington state this week for the state to sequester ballots submitted by hundreds of people it suspects are not U.S. citizens. Meanwhile, another lawsuit filed in Alaska last week seeks to delay certification of the vote if the Republican incumbent doesn't win. All three states have House or Senate races that will help determine the balance of power in the nation's Capitol.
Federal prosecutor says US government seeks to ‘safeguard’ the election
First Assistant United States Attorney Bill Essayli argued Tuesday that the Justice Department’s demands would not significantly disrupt the ongoing election.
“We have not asked to void any ballots,” he said. Instead, the government was seeking to “work with” California officials to “safeguard” the election.
He said testimony would explain how the government's list of 20,000 names was compiled.
“The case rises and falls on the credibility” of the flagged names, he told the judge, arguing the state has an obligation to investigate before counting those voters' ballots.
California officials previously argued that once a ballot is mailed in, it is separated from individual voter identification. That would make it impossible to separate ballots that have already been submitted, the state said. More than 3 million ballots have already been returned.
Lawyers for California warn of delays and disruptions
Lawyers for California and Los Angeles County said the federal government has not specified how or when it obtained the voter file, leaving open the possibility the list was inaccurate or outdated. They also questioned the government’s reliance on a third-party service to determine Social Security numbers used in their effort.
Christopher Pelham, an attorney for the Los Angeles County registrar, said the county is receiving thousands of ballots a day and staffers would have to sort them by hand in a time-consuming process.
“There is no way to do that by Tuesday, and not even by the December certification deadline,” Pelham argued.
California officials previously warned in court filings that complying with the Trump administration’s demands could “disenfranchise legitimate voters,” delay election certification and “cause general uncertainty in the election results.”
M. Patrick Moore, a lawyer for the Los Angeles County registrar, argued that the county would cooperate if the federal government wanted to criminally prosecute noncitizens who illegally voted.
“If an individual who is a noncitizen votes, there will be record of that and the county will provide that record,” to the federal courts, Moore said in court Tuesday.
He added that if the federal government believes that the election was compromised, there are legal processes for contesting the election outcome.
The federal government sought emergency relief from the 9th U.S. Circuit Court of Appeals before Tuesday's hearing but was rebuffed Monday by a divided three-judge panel.
While their ruling mainly called it premature for an appeals court to get involved before the district judge could hear the case, two of the three judges wrote separate concurrences making it clear they wouldn't support setting aside the ballots.
The dissenting judge argued, however, that state and federal laws prohibiting noncitizen voting compel the state to verify potentially illegal ballots before they can be counted. Failing to do so, he wrote, could cause irreparable harm to the election.
Both sides battle over the federal list's accuracy
Los Angeles County Assistant Registrar-Recorder Monica Flores said in court filings that her staff reviewed a sample of 200 records from the federal list. She said the sample included canceled or inactive registrations, people with no voting history and voters whose records indicated they were born in the U.S.
Nicolas Bartell, associate director of the Fraud Detection and National Security Directorate at U.S. Citizenship and Immigration Services, said his department double checked those 200 records and found that only four likely were citizens and one person was deceased.
In a court filing Monday, Bartell gave the most detailed account yet into its methodology for developing the list. Notably, the federal government is not using the SAVE database, which judges elsewhere have ruled illegally aggregates sensitive personal data and risks purging eligible voters from the rolls.
He wrote that the agency cross referenced publicly available voter registration data with data from a third-party data collection site, Department of State records and Social Security Administration records.
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