Courts
Judge Orders DOJ and DHS to Stand Down on Prosecution Threats Against Election Workers Before Tuesday's Vote
A federal judge in California has temporarily barred the Justice Department and DHS from threatening election workers with prosecution or demanding they set aside ballots, two days before the Nov. 3 midterms.
By Kacee Allen Network News Desk.
Editor’s note: The News Desk reviewed the text of the judge’s order and checked its terms against reporting from CBS News, CNN, JURIST and IBTimes UK, including the Justice Department’s on-record response given to CBS News. Kentucky turnout figures come from WKYT’s report on State Board of Elections data. The Network did not reach the Justice Department or Kentucky officials for this report. The Kentucky context section is the Network’s own analysis.
Two days before Tuesday’s midterm vote, the Justice Department and the Department of Homeland Security are under a court order to stop warning local election workers that counting certain ballots could land them in criminal trouble.
U.S. District Judge Trina Thompson of the Northern District of California signed a temporary restraining order late Friday, Oct. 30. A coalition that includes the Service Employees International Union, the American Federation of State, County and Municipal Employees and the group Protect Democracy had filed suit only a day earlier. The defendants include Attorney General Todd Blanche and Homeland Security Secretary Markwayne Mullin.
What the order forbids
While the order stands, the two departments may not demand that state or local officials drop specific registered voters from the rolls, refuse them ballots, or set aside their ballots for the Nov. 3 election when the only reason is a federal claim that the voter is ineligible. They also may not threaten prosecution of workers who decline those demands or who process ballots as state and federal law require. CNN reported that the limits reach election offices in every state, not just California.
The department must also tell any government that got its letters that those threats are now blocked, and it must notify the court of any pending search warrant requests or subpoenas. The order itself does not forbid subpoenas.
Thompson, a Biden appointee, found the plaintiffs likely to win on claims under the Voting Rights Act’s anti-intimidation provision, the Constitution’s Elections Clause, the Fifth and Tenth Amendments, and the Administrative Procedure Act. “Although Defendants claim that their actions are designed to halt unlawful voting by noncitizens, their actions are likely to have the effect of interfering with election administration and disenfranchising lawful voters,” she wrote.
The order runs out on Nov. 16. A hearing on a longer injunction is set for Nov. 13.
How the fight started
The order recounts the plaintiffs’ account that on Oct. 23 the department delivered letters to California county election staff warning of prosecution for anyone who helped process a ballot from a voter it calls ineligible, and that armed DHS officers carried those letters. CBS News reported that the department has pushed California to separate about 20,000 mail ballots it ties to noncitizens and has subpoenaed Los Angeles County officials to a grand jury. The same Friday, the 9th Circuit Court of Appeals turned down the department’s bid to have those ballots set aside.
A department spokesperson told CBS News the judge acted “without even waiting to hear from the United States” and called it “a two-track system of justice,” adding that the department “is reviewing the order and evaluating all options.” IBTimes UK reported that the administration has appealed.
Kentucky context (analysis)
Kentucky is not a party to the case, but it is not outside it either. The lawsuit, as described by CBS News, cites letters that Civil Rights Division chief Harmeet Dhillon sent in July to all 50 states and Washington, D.C., warning that local election officials could be prosecuted. That would include Kentucky.
The order’s listed limits deal with ballot demands and prosecution threats, not federal election monitors. That leaves untouched the standoff this Network covered on Oct. 26, when Jefferson and Fayette officials said Justice Department monitors would not be allowed inside polling places.
Kentucky’s county clerks head into Tuesday with heavy early turnout. WKYT reported that 267,242 people had voted in person statewide by Saturday afternoon, the last day of early voting. Polls open Tuesday from 6 a.m. to 6 p.m. local time. What to watch next is whether the 9th Circuit or the Supreme Court steps in before the ballots are counted.