DOJ loses new appeal for order purging 20,000 ‘suspect’ ballots

LOS ANGELES (KESQ) - The Justice Department today lost its second 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 next week's election.

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

The 2-1 vote Friday to reject the appeal is the latest setback for the Trump administration's efforts to assert control over state-run elections.  

"Because Congress has not exercised the specific power granted to it under the Elections Clause to override California's established laws for challenging ballots or removing ineligible voters, the State Legislature's statutory scheme remains the only method to do so,'' the appellate panel found.

In a forceful opinion this week, U.S. District Judge David O. Carter said the federal government's 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 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 indicated he would 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 DOJ 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 Sunday hearing.

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

On Thursday, federal prosecutors pursued subpoenas of California state and local election officials in connection with alleged illegal voting in next week's midterm elections.

The action was seen as an expansion of the Trump administration's efforts to show that thousands of non-citizens are registered on California's voter rolls.

The DOJ issued a statement pointing out that receiving a subpoena "doesn't mean you are a target'' of criminal prosecution.   

The federal government 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 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, 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 states. "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.

"Three legal victories in one week make clear that the Trump Administration has zero authority to interfere in California's elections,'' state Attorney General Rob Bonta said in a statement. "California law makes it illegal for non-citizens to vote in federal elections, and there are several state laws that guard against it. That is why it is exceptionally rare. The administration's baseless claims of widespread fraud are an attempt to sow doubt in our democratic process and risk disenfranchising eligible voters. We will keep fighting to uphold the rule of law."  

Gov. Gavin Newsom also commended the appeals court ruling.  

"Trump and his administration just lost for the third time this week in their desperate and dangerous attempts to meddle in the California election process with voting already underway and just days before Election Day,'' Newsom said. "These attacks on our democracy are serious, and the full force of our state is defending our democracy right now. We will continue to fight them on their illegal power grabs every step of the way, and deliver a free and fair election just as we've always done."