The judge overseeing the Trump administration’s expedited bid for a temporary restraining order seeking to purge more than 20,000 “likely non-citizens” from California’s voter rolls in the days before the midterms said he would rule “promptly” following Tuesday’s hearing in downtown Los Angeles.
The closely watched lawsuit, United States of America v. State of California, et al., is assigned to the same judge who previously dismissed a U.S. Justice Department bid to force California to turn over its full voter registration list to the federal government.
U.S. District Judge David O. Carter is expected to deny the DOJ’s request for a TRO on Tuesday.
Government prosecutors have sued 30 states that refused to turn over voter data, losing the majority of cases so far.
Meanwhile, a federal appeals court also appears ready to deny the DOJ’s 11th-hour bid to force election workers to set aside vote-by-mail ballots the Trump administration claims may be cast by non-citizens.
At a rare Sunday session, a three-judge panel of the 9th Circuit Court of Appeals indicated that it sees serious problems with the administration’s demand for immediate action to separate any ballots submitted by voters on a 20,000-person list of suspected non-citizens.
“It seems to me you want us to issue an injunction that is entirely inconsistent with the law the California Legislature has adopted,” Judge Mark Bennett, a Trump appointee, said at the appellate hearing. “How can we do that?”
“Congress and the California Legislature have said non-citizens can’t vote. This lawsuit is about, `We don’t like the way you’re sorting citizens from non-citizens.’ I just don’t see (federal law) telling California how to do the sorting.”
All three judges expressed concerns that the DOJ had appealed too quickly to the 9th Circuit before Carter had made a decision in the matter.
The DOJ appealed to a federal appeals court Thursday even though Carter had not yet set a hearing on the emergency request to block the counting of thousands of suspected non-citizen vote-by-mail ballots.
The pre-emptive strike was filed with the 9th Circuit Court of Appeals after the judge failed to meet a deadline the department had requested for a ruling. Federal prosecutors said in the filing that Carter’s apparent unwillingness to meet the deadline amounts to a “constructive denial” of the DOJ’s request for preliminary relief.
Carter wrote in a midday filing Friday that he will rule “promptly” after hearing from the parties Tuesday.
In opposition to the DOJ’s 11th-hour attempt to have election officials set aside the allegedly suspect ballots, defendants Secretary of State Shirley Weber and Los Angeles County Registrar-Recorder/County Clerk Dean Logan contend they lack both the mechanisms and the legal authority to freeze mail ballots in the November election until the voters’ citizenship can be verified.
Any alleged evidence suggesting that tens of thousands of people in Los Angeles County are unlawfully registered to vote is entirely “unreliable,” according to the county’s opposition to the TRO request.
“Voting is already underway in Los Angeles County,” according to the motion. “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.”
According to Weber’s office, federal officials claimed in July that California had 190,000 non-citizens on its voter rolls, but when her office asked for proof of their claims, “They refused and provided California with nothing.”
The Trump administration has long asserted that large numbers of non-citizens were casting ballots in California and elsewhere, although officials have never provided any proof or documentation of such sweeping fraud.
Monica Flores, an official in the registrar’s office, wrote in an affidavit that the registrar “has no authority under state or federal law to withhold or set aside the ballot of a registered voter on the basis of a third party’s assertion that the voter may not be a citizen, has no information beyond the voter’s own attestation with which to determine citizenship, and has no lawful means of obtaining such information.
“In addition … a substantial part of what the DOJ requests is no longer physically possible, and the remainder could not be carried out without placing the timely and accurate administration and certification of the General Election at risk.”
In its request for an immediate ruling on the TRO request, federal prosecutors wrote that time was of the essence.
As the defendants “continue processing ballots that cannot later be segregated or verified for eligibility, the dilution of lawful votes accelerates in real time,” according to the motion.
“This is an emergency,” DOJ lawyers wrote. “Every minute of processing that occurs without segregating the ballots of suspected non-eligible voters causes untraceable disenfranchisement and dilution of the votes of United States citizens.”