The fight over more than 20,000 California mail-in ballots has moved to a federal appeals court, just as early voting opens in the state ahead of the November 3 midterm elections.
The U.S. Justice Department asked the 9th U.S. Circuit Court of Appeals on Thursday, October 22, to intervene in its lawsuit against California and Los Angeles County. The department wants the state to set aside mail-in ballots associated with people the federal government believes are likely not U.S. citizens, until their citizenship can be verified.
The unusual step came after the department said the trial judge assigned to the case, U.S. District Judge David Carter, had not ruled by the department’s requested deadline. Justice Department lawyers described the lack of a ruling as a “constructive denial” of their request for emergency relief.
What the Justice Department is asking for
The department filed its lawsuit on October 15 and sought emergency relief four days later. It argues that once ballots are counted, they cannot be separated from the ballots of eligible voters, and that counting ballots cast by ineligible voters would dilute the votes of American citizens.
First Assistant U.S. Attorney Bill Essayli has led the public case for the department, saying at a news conference that “every minute that goes by, American citizen votes are being diluted in the state of California.” Attorney General Todd Blanche is also involved in the push, according to reports.
The department says it identified the voters by comparing California’s voter rolls against federal immigration records, and that it gave state officials a list of more than 20,000 names. It asked California to review the list within 48 hours. When state officials did not do so on the department’s timeline, the department sued.
California’s response
California and Los Angeles County officials dispute the department’s account and its legal claims. Los Angeles County Registrar-Recorder Dean Logan wrote to the California Association of Clerks and Election Officials on Friday, saying the department’s latest letter carried a “posture of intimidation and threats leveled against local election officials just twelve days before the election.”
Logan said the department “misrepresents” the county’s response to an earlier letter, and said the county was given an “unenforceable 48-hour deadline” to provide information it had previously obtained through subpoenas. He also said a review of the names provided showed many were associated with addresses throughout California, not solely within Los Angeles County.
State officials have also stressed that voter eligibility must be based on verifiable information, not assertions from data matching. In a statement quoted by CNN, Logan’s office said: “Federal and state laws are clear on how voter eligibility is established — and any action to remove a voter from eligibility must be based on verifiable information, not assertions of unconfirmed data matching.”
Only U.S. citizens are allowed to vote in federal elections. Some California localities allow noncitizens to vote in certain local or school board elections, which is separate from federal races.
Voting is already under way
The legal fight is unfolding while voting is already happening. Early in-person voting began Saturday at 123 vote centers across Los Angeles County, and Essayli told reporters that California had already processed more than 300,000 ballots in Los Angeles County alone — a figure he cited in arguing that the disputed ballots could be counted before the courts resolve the case.
Essayli has said it is “very highly likely” that noncitizens have already voted. That is the Justice Department’s claim, not an established finding by a court: no court has ruled that any specific ballot in this dispute was cast by a noncitizen, and the underlying citizenship of the people on the department’s list has not been adjudicated.
A hearing before Judge Carter is scheduled for next week, and the Justice Department is now asking the appeals court to act before then. A similar legal battle is also unfolding in Alaska, where the administration is seeking to block certification of the state’s Senate race under certain circumstances if Republican Senator Dan Sullivan loses.
The case is being watched closely because the November 3 midterms will determine control of Congress, and because it tests how far the federal government can go in directing how states run their elections. Under the U.S. system, individual states are in charge of running elections, a point Reuters noted in its reporting on the appeal.
What happens next depends on the courts. If the 9th Circuit intervenes, it could order the disputed ballots set aside while citizenship is checked. If it declines, the ballots will be processed under California’s existing procedures while the lawsuit continues.
Sources: Reuters, CNN, NY Post.
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