Judge stalls DOJ push on California noncitizen ballots

By The Conservative Desk (/journals/conservative-desk)

If it's this big, you've got a remedy for goodness sakes. Go out and indict," U.S. District Judge David O. Carter told First Assistant U.S. Attorney Bill Essayli from the bench.

"We want to stop the illegal voting. We don't want to chase it later."

That exchange framed the fight now before a federal court in California. The Justice Department has sued to stop the state from counting ballots cast by people on a federal list of about 20,000 alleged noncitizens registered to vote. Carter, a Bill Clinton appointee, said the evidence requires independent review and that he is moving toward appointing a special master to examine the government's claims and whether any ballots could be separated before California certifies results by its Dec. 11 deadline. He said he would not "just wing it" with a ruling based on late-game evidence supplied on the eve of the hearing.

Federal law bars noncitizens from casting ballots in federal elections. Essayli put the sovereign question in plain terms. "I would ask the state how many illegal votes is OK for them? It cannot be that the state has a right to facilitate the counting and tabulation of noncitizen votes. There's no right to that."

Anne Bellows, an attorney representing California, answered on the state's strongest ground. "I just want to make sure the stakes are clear: that what we're talking about is stripping voting rights from thousands of people until proven otherwise."

Carter shared that worry. "Some of these may be very valid voters, and that's my concern about disenfranchisement," he said. He warned that acting hastily could disenfranchise eligible voters or improperly change election procedures while voting is underway. Those concerns do not erase the federal interest. A citizen's ballot is the equal of every other citizen's ballot only if the rolls exclude people who have no legal place in the electorate. Limited government and the rule of law both start with that line. National sovereignty is empty if the people who choose officeholders are not the people the Constitution defines as the political community. Taxpayers fund the election machinery on that premise. The ordinary voter who registers, shows identification where required, and waits in line has a right to expect the same standard applied to every name on the rolls.

More than 3 million ballots have already been returned in California. The state has roughly 23 million total registered voters. The 20,000 names are a fraction of that total. Fraction is not the same as zero. Essayli argued in court for ballot segregation and citizenship verification and told the judge the government was not seeking chaos. "We have not asked to void any ballots," he said. He said the case rises and falls on the credibility of the flagged names and that the state has an obligation to investigate before counting those voters' ballots.

The reliability fight is concrete. Los Angeles County surveyed 200 names on the government's list and found many were citizens who had never been sent ballots. The Justice Department reviewed 200 names and said it found only four citizens. Roughly 800 federal employees manually checked each name on the list. Essayli stood on that work. "We stand by the reliability of the information. We take our obligations and ethics very seriously." The federal agent who conducted the investigation said in an affidavit that the county's findings were false. The filing conceded that some names of citizens could have been mistakenly included.

M. Patrick Moore, a lawyer for the Los Angeles County registrar's office, offered cooperation on prosecutions rather than pre-certification segregation. "If an individual who is a noncitizen votes, there will be record of that, and the county will provide that record" to the federal courts, Moore said. He added that if the federal government believes the election was compromised, there are legal processes for contesting the outcome. California officials dispute the government's approach and say separating ballots may not be feasible.

Carter pointed repeatedly to criminal process as the cleaner path. Federal officials arrested 28 people across California in October accused of illegally registering to vote. That figure is the scale of proven enforcement so far. The Ninth Circuit rejected an emergency DOJ bid to set aside the ballots. The Justice Department made a similar demand in Washington state involving hundreds of suspected noncitizens. A separate lawsuit filed in Alaska seeks to delay certification if the Republican Senate incumbent loses. All three states have House or Senate races that will help decide control of Congress.

Prevention and after-the-fact indictment are not the same tool. Carter's point was that an emergency order mid-election risks cutting lawful voters out of a count already underway. The special master path is the judge's attempt to test both claims against the record before Dec. 11. He said the independent review would take stock of evidence after a hearing set for two weeks out and that the work should finish by the certification deadline. He said a formal ruling would come Wednesday and that a decision on the injunction the Justice Department requested would not come for some time.

Carter rarely spoke through the hearing. When he closed, he left one instruction and walked out. "This court believes it would be wise that any threats to state and county election employees cease immediately," he said, before abruptly leaving the courtroom.