A federal judge has refused to order California election officials to separate and not count the ballots of individuals whom the Trump administration claimed were not US citizens. The decision was made by US District Judge David Carter, who was nominated to the federal bench by Bill Clinton.
The ruling came approximately two weeks after the Department of Justice delivered a USB stick to election officials in Los Angeles and Sacramento. The department claimed the device contained the names of 20,000 non-citizens on the state's voter rolls. California has more than 23 million registered voters, and voting by non-citizens is exceptionally rare.
Officials were given only 48 hours to review the list. The department stated it would sue the state if officials did not separate the ballots of those whose citizenship could not be verified, but it refused to provide further details on its methodology. Los Angeles officials found preliminary indicators that the list was inaccurate.
The Department of Justice sued California on 15 October to force it to separate ballots and verify citizenship. Carter wrote in his decision on Wednesday night: "This case concerns the right of every American citizen to vote in free and fair elections." He added: "Never before in American history has the federal government, on the eve of an election, sought to force state and local governments to abandon their own constitutional election procedures and bow to the will of the executive branch." He also wrote: "By filing this lawsuit, the executive branch wants this court to believe that the government is the sole sovereign." However, he added, "California and its people are also sovereign."
Carter assessed that if the Department of Justice's request were granted, it would likely violate a 1993 law requiring states to remove ineligible voters from official rolls at least 90 days before an election. California election officials stated they could not verify the citizenship of individuals on the agency's list before election day. Carter criticised the Department of Justice directive as a risk of disenfranchising thousands of voters. "A separated ballot would be, in essence, a removed ballot," he wrote.
The Department of Justice separately threatened criminal prosecution of state election officials if they counted non-citizen ballots. Sam Trepel, a former Department of Justice prosecutor, wrote in a blog this month that such a move would have no legal basis. After filing the lawsuit, the Trump administration began delivering lists to other counties with alleged non-citizen voters. When election officials began reviewing these lists, they discovered that the department had marked voters who were not on the rolls and provided insufficient information to verify their citizenship status, according to CalMatters.
After Carter scheduled a hearing on the Department of Justice's emergency request for 27 October, the department appealed to the US Court of Appeals for the Ninth Circuit, arguing that Carter was not considering the case quickly enough. A panel of Ninth Circuit judges ruled against the Department of Justice this week by a vote of 2:1. In July, the Department of Homeland Security announced it had identified up to 190,000 non-citizens on California voter rolls, but did not provide the state with further details until ballots in the state had already been mailed.
In his reasoning on Wednesday, Carter wrote: "Eroded trust in our democracy is irreparable. When a vote is separated, permanent harm has occurred. If the executive branch can discard votes and jeopardise ongoing elections based on unproven claims, then our democracy is in danger." He concluded: "This court refuses to be part of such a process."
