A federal judge said after a hearing on Oct. 27 that he will rule the following day on an emergency request by the U.S. Department of Justice (DOJ) to block California from counting mail ballots from alleged noncitizens.
U.S. District Judge David O. Carter said he was concerned that the DOJ’s request to temporarily sequester ballots until voters’ citizenship can be verified might disenfranchise and confuse legitimate voters, saying it represented a “monumental change” to election procedures to implement while voting was already underway.
Carter said he would rule Oct. 28 on the federal government’s request for a temporary order preventing officials from counting any of the ballots from the individuals the DOJ has flagged as noncitizens.
Earlier this month, the DOJ asked Carter to sequester mail ballots for the Nov. 3 midterm congressional elections from more than 20,000 individuals it suspects are noncitizens. The DOJ said California had failed to meet a deadline to complete a review of the suspected noncitizens, some of whom the department said had mailed in ballots.
Instead of waiting for a ruling on the merits, the department filed an emergency application last week with the U.S. Court of Appeals for the Ninth Circuit, asking it to block California from counting the ballots. On Oct. 26, a three-judge panel of that court ruled 2–1 that it lacked jurisdiction, or authority, to rule on the matter because Carter had not yet issued his ruling in the case.
The panel said the federal government failed to give the district court an “adequate opportunity to consider” its lawsuit.
In a concurring opinion, Circuit Judge Gabriel Sanchez said that granting the DOJ’s request might be interpreted “as an endorsement of the United States’ currently unsubstantiated allegation that roughly 20,000 noncitizens are on California’s voter rolls.”
Such a perceived endorsement might dissuade some from voting “because they could be wrongly labeled as voting illegally and would have to engage in any subsequent investigation,” he said.
Sanchez also said granting the Trump administration’s request would pull election administrators away from their existing tasks to implement a new voter-citizenship verification process to align with the DOJ’s demands.
During the Oct. 27 hearing, DOJ attorney Bilal “Bill” Essayli said the federal government’s request aimed to ensure electoral integrity.
Carter replied, saying that the “traditional remedy” for voter fraud was a criminal indictment. Unlawfully cast ballots, he said, can be removed in the weeks following Election Day, before the results are officially certified.
“You’ve got a remedy, for goodness sake,” the judge said. “Go out and indict.”
California’s attorney, Anne Bellows, said the state already has strong safeguards to prevent noncitizens from voting.
Bellows said the DOJ’s claims relied on “mysterious database methods” and that complying with the department’s demands runs the risk of disenfranchising eligible voters.
“The Supreme Court has reiterated time and again that, as an election is close at hand, federal courts should not interfere to change the rules under which that election is held,” she said. “This applies with even more force when the election is ongoing.”
President Donald Trump has said on multiple occasions that states aren’t doing enough to prevent noncitizens from voting. The DOJ on Oct. 16 told California election officials they could be criminally liable if they count ballots the Trump administration has said were cast by noncitizens.
“This court believes that it would be wise that any threats to state and county election employees cease immediately,” Carter told the DOJ attorneys during the hearing.
The Epoch Times reached out to the DOJ and the Office of the Attorney General of California for comment. No replies were received by publication time.
Troy Myers and Reuters contributed to this report.
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