The Justice Department gave up on Friday its attempt to make California set aside the ballots of about 20,000 voters it called likely noncitizens. It lost in a federal district court, lost on appeal and lost at the Supreme Court. Then it told a judge the case could no longer be won.
The department’s own filing explains why. California has been counting its ballots, and once a ballot is processed it is mixed in with the rest and cannot be traced to a voter. “The relief the United States sought and needed is no longer available,” the motion said, “rendering voluntary dismissal necessary.” By Friday morning California had processed about 9 million ballots, with roughly 5 million still to come, CBS News reported.
The department filed the suit on Oct. 15, less than three weeks before Election Day. It asked the court to force California and Los Angeles County to segregate mail ballots from voters on a list compiled by the Department of Homeland Security. California officials said the list was out of date and included eligible voters. U.S. District Judge David Carter refused emergency relief, warning that separating the ballots would “wreak havoc on the midterm elections.” The 9th U.S. Circuit Court of Appeals refused the request on Oct. 30. The Supreme Court turned it down in a one-line unsigned order on Nov. 2, the night before voting.
For Black voters, the stake was never abstract. The plan would have put a cloud over the ballots of citizens who matched a government list, with the burden falling on voters to prove they belong. That is the logic of the literacy tests and vouching rules that kept Black Southerners from the polls before 1965: the state decides who looks suspect, and the voter has to clear their name. This week the DOJ also demanded that Washington state set aside about 400 ballots, and a judge there said the list may include citizens.
The department is not dropping the idea. “The United States is evaluating how to best ensure that American votes are protected, including by preventing vote dilution by noncitizens,” its filing said. It also sued Alaska over a similar demand, and that case was quickly dismissed; an appeal is pending. California prosecutors have separately arrested more than 30 noncitizens accused of illegally registering to vote, CBS reported.
The government never showed a court that the 20,000 were not citizens. What it did was ask judges to treat a list as proof in the final days before an election, and three courts declined. A hearing had been set for Nov. 13, and the department withdrew before it. Any next attempt should have to start with evidence, and with the voters it names given a chance to answer before their votes are touched.
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