Feds renew appeal for order purging 20,000 ‘suspect’ ballots

Wave Wire Services

LOS ANGELES — The federal Justice Department has renewed its bid to have an appeals court stop California election officials from processing more than 20,000 ballots from people the federal government suspects may be non-citizens but are registered to vote in the Nov. 3 election.

The renewed effort was filed Oct. 29 with the 9th Circuit Court of Appeals immediately after a Los Angeles federal judge denied the department’s attempt to obtain a temporary restraining order separating the allegedly ineligible vote-by-mail ballots Oct. 28.

In a forceful opinion, U.S. District Judge David O. Carter said the request “would wreak havoc and disrupt the election that is already underway, create a chilling effect on election workers and voters alike, and discount the votes of United States citizens.”

The judge set an expedited hearing for Nov. 13 in Los Angeles federal court to further explore the matter. Carter said earlier this week that election officials have until Dec. 3 — the date by which election results must be certified — to resolve the issue, suggesting there was no need for an emergency injunction.

Carter said he planned to call witnesses to determine the reliability of the methodology and data that prosecutors used in creating the list of 20,000 possible non-citizens. He said previously that federal officials provided only vague explanations “and raised multiple questions regarding reliability” of the process.

In asking for a quick ruling on the renewed motion, the Department of Justice wrote that “once a vote-by-mail ballot has been processed, it cannot be undone if it is later determined that the voter was ineligible.”

Federal prosecutors filed their first application for an emergency order with the 9th Circuit last week, before Carter ruled on the matter. The three-judge appellate panel quickly rebuffed the effort following a rare weekend hearing Oct. 25.

In his own ruling, Carter wrote that by moving to have ballots sequestered, the Trump administration embarked on “a broad, ongoing pattern of attempted election interference.”

Concluding his 26-page order, the judge said the federal government “cannot replace the remedy Congress carefully enacted with its own unlawful and unconstitutional solution instead. Eroded trust in our democracy is irreparable. Once a vote is segregated, lasting harm has occurred. 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.”

Bill Essayli, the top federal prosecutor in the Los Angeles area, had pushed for an immediate ruling at a hearing before Carter Oct. 27, claiming federal law covering non-citizen voting eclipses the state’s right to run its elections.

“What they cannot do is do nothing and proceed to count the votes,” Essayli argued.

The Department of Justice sued California on Oct. 15, more than a week after mail ballots were sent to all registered voters, demanding it set aside 20,000 ballots from alleged non-citizens after the state refused to voluntarily sequester those votes.

Carter, a President Bill Clinton appointee who is overseeing the closely watched lawsuit, United States of America v. State of California, et al., previously dismissed a DOJ attempt to force California to turn over its full voter registration list to the federal government.

The Justice Department has sued 30 states that refused to turn over voter data, losing the majority of the cases so far.

In opposition to the administration’s demand for an injunction, California Secretary of State Shirley Weber and Los Angeles County Registrar-Recorder/County Clerk Dean Logan argued they lack the mechanisms and legal authority to freeze mail ballots until voters’ citizenship can be verified.

“Voting is already underway in Los Angeles County,” the motion stated. “Ballots have been mailed, returned and processed, and election officials are working toward fixed deadlines for counting and certification. Plaintiff United States of America, through the Department of Justice … now asks this court to interrupt that work and enjoin the withholding of 20,000 registered California voters’ ballots pending investigation based solely on an unreliable voter roll maintenance list.”

The Trump administration has long alleged that large numbers of non-citizens were casting ballots in California and elsewhere, but officials have not provided proof or documentation of widespread fraud.

The Orange County Registrar of Voters told Essayli in a letter Oct. 28 that the federal government’s request of a list of 1,754 individuals prosecutors allege are likely non-citizens is “impracticable and potentially disenfranchising” because the election is already underway.

The letter from county counsel Leon Page said that latest demand was “vastly more expansive and burdensome” than last year’s request for confidential voter information, which was rejected by Carter and was being appealed.

Prosecutors demanded that the 1,754 potential votes be put aside and not counted, but the county has received more than 360,000 votes so far.

Page added, “There is currently no streamlined process established for flagging any of the 1,754 individuals that may appear in the (Orange County) voter database and segregating their ballots, and such a process would require substantial time and effort to develop, test and implement.”

Officials estimate it would take “several hundred man hours of effort” to do the work, Page said. And that’s aside from overseeing the election, he said.

The San Diego County Registrar of Voters also refused a request from the DOJ to set aside the ballots of 1,709 San Diego County voters who federal officials allege are non-citizens.

A letter signed last week by San Diego U.S. Attorney Adam Gordon requested the ballots be left uncounted until the voters’ citizenship status could be verified, while hinting at “legal consequences” if votes ended up cast for non-citizens.