Carter says segregating a vote causes lasting harm

In a 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 that would have stopped California election officials from processing ballots pertaining to 20,000 individuals federal officials say are likely noncitizens. The case concerns ballots in the midterm elections, and the Justice Department filed its lawsuit on Oct. 15.

The Justice Department argued that emergency action was necessary because ballots were already being processed. Once signatures on returned mail-ballot envelopes are verified, election officials separate the ballots from the envelopes to retain voter confidentiality, after which an ineligible ballot cannot be retrieved. Carter said the requested intervention could disenfranchise eligible voters and create chaos.

“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.

“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.”

California state and local officials countered that the Justice Department’s list of likely noncitizens was unreliable. They said setting aside ballots days before Election Day, while voting and the processing of mailed ballots were underway, would be unlawful and infeasible, and would disenfranchise eligible voters. A preliminary Los Angeles County analysis found that many people on the list did not have active voter registrations.

A Los Angeles County analysis of a small sample found that a significant portion had said in records they were born in the United States. U.S. Citizenship and Immigration Services senior official Nicolas Bartell contested that in recent court filings, saying his office’s review of those individuals found none were U.S.-born. He acknowledged that four of those people might have a claim to U.S. citizenship.

Kassra Oskooi, a University of Delaware political scientist tapped as an expert witness by voting rights groups intervening in the case, said in a declaration to the court that USCIS’s matching protocol “is likely to be unreliable.” Bartell also provided the court with additional details about the federal government’s methodology in creating the list. The accuracy of the list remains disputed.

Carter said the federal government could address the issue by continuing to indict people for the crime of illegally voting as noncitizens. The Justice Department had charged 28 people in California with voting crimes, while DOJ officials said the department had charged dozens of people over the prior two months for registering or voting without being a U.S. citizen.

Federal prosecutors argued that votes by noncitizens dilute the votes of U.S. citizens. Audits and investigations have shown that voting by noncitizens is extremely rare.

In California’s most recent motion to the court, Attorney General Rob Bonta, a Democrat, asked the judge to take into account the circumstances of the Justice Department’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 California lawsuit is among a flurry of unprecedented actions by the Justice Department in states close to Election Day, raising alarms about federal interference in state election procedures. On Monday, federal prosecutors asked Washington state election officials to review a list of 400 registered voters the Justice Department believes are likely noncitizens. Last week, the Justice Department filed an unusual lawsuit in Alaska seeking to stop the state from certifying the results in its Senate race if the Republican incumbent lost because of votes for a longshot candidate with a similar name who was accused of being a spoiler candidate.

The Justice Department is expected to appeal Carter’s denial, and the matter could ultimately wind up before the U.S. Supreme Court.