Justice Department Asks Appeals Court and Trial Judge to Halt Counting of 20,000 California Mail Ballots

The Justice Department is pressing two courts at once in its effort to stop California from counting mail ballots from more than 20,000 voters whom federal officials have flagged as probable noncitizens, less than two weeks before the Nov. 3 midterm elections.

On Thursday night, federal lawyers filed a notice telling U.S. District Judge David O. Carter of the Central District of California that they were taking the case to the 9th U.S. Circuit Court of Appeals. Carter had not yet ruled on the department’s emergency request for a temporary restraining order. On Friday, the department went back to Carter and asked him for an injunction that would stay in place while the appeal moves forward.

Why the department appealed early

The department filed its lawsuit against California on Oct. 15. According to Law&Crime, it had given state and county election officials a list of what it called “likely noncitizen” registrants two days earlier and asked that ballots from those voters be set aside until their citizenship could be confirmed. Many of the people on the list live in Los Angeles County, the outlet reported. Local officials declined the request.

On Oct. 19, the government filed an emergency application for a temporary restraining order and a preliminary injunction. It then asked Carter to rule by noon on Oct. 22. When that time passed without a decision, the department treated the silence as a refusal.

“Given the critical and exigent nature of the relief sought, the Court’s silence is a constructive denial of the United States’ emergency application for preliminary injunctive relief,” Assistant U.S. Attorney Julie A. Hamill wrote in the notice of appeal filed Oct. 22.

Reuters, in a report published by NBC News, described the step as an unusual maneuver. Carter has scheduled a hearing on the restraining order request for Tuesday.

What the government is asking for

In an earlier filing, the department said it was not trying to strike anyone from the voter rolls. “The United States does not seek to remove voters from the rolls,” that request said. Federal lawyers said they instead want state and county officials to separate the ballots of suspected noncitizens so that only eligible votes are counted.

The government argues that time is running out because California counties are already opening and processing returned ballots. In its Friday request, the department wrote that “once illegally cast ballots are counted and commingled with lawful votes, the resulting harm is impossible to remedy.”

“The only way to preserve the eroding status quo is for an injunction pending appeal to require segregating the ballots Federal officials have identified as associated with ineligible voters,” the filing said, according to Democracy Docket.

California’s response

California opposed the new request on Friday and called the appeal premature. State lawyers told the court there were no grounds for an appeal while Carter was still weighing the restraining order application.

“The TRO Application has not been denied, either by court order or constructively, and the Court has not failed to rule,” the state wrote. California has also urged the court to dismiss the lawsuit, arguing that the midterm election was already “well underway.” The statewide deadline to send out mail ballots was Oct. 5.

Related charges and other states

Earlier in the week, the Justice Department announced that 28 people accused of not being U.S. citizens had been charged in connection with illegal voter registrations. Deputy Attorney General Trent McCotter said all of those charged appear “on the list of more than 20,000 likely noncitizen registrants we provided to California election officials last week,” according to The Hill.

Attorney General Todd Blanche said on Thursday that the department may file similar lawsuits in “a number of states,” Democracy Docket reported.

The 9th Circuit had not acted on the appeal as of Friday night. Carter’s hearing on the restraining order is set for Tuesday, one week before Election Day.