The Justice Department has given up on its attempt to make California set aside about 20,000 ballots it claimed came from noncitizens. It asked a federal court to dismiss the case on Friday, Nov. 6, three days after the election, after a district judge, the 9th U.S. Circuit Court of Appeals and the Supreme Court had all refused to stop the count.
The government’s own filing gave the reason: the ballots had been “commingled” with lawful ones, so the relief it wanted was no longer possible. By then roughly 9 million ballots had been processed and nearly 5 million were still to be counted. On Tuesday, U.S. District Judge David Carter ended the case, writing, as the Washington Times reported, that it “attempted to disrupt an ongoing election and create confusion and uncertainty for voters and election workers alike.”
Black voters have been on the receiving end of this kind of list for as long as there have been lists. Purges, challenges and “inactive” flags have been used since Reconstruction to make eligible citizens prove themselves at the last minute. This week in Mississippi, thousands of voters had to cast affidavit ballots after the state marked their registrations inactive, and the Senate race hangs on whether those ballots get counted.
The California list did not hold up. Los Angeles County reviewed 200 records from it and found that 112 were inactive registrations, with no ballots mailed at all. Carter wrote in October that the Justice Department’s “lack of credibility weighs against a finding in their favor.” He said setting the ballots aside would “wreak havoc and disrupt the election that is already underway, create a chilling effect on election workers and voters alike, and discount the votes of United States citizens.”
The appeals court, in a 2-1 ruling, put the blame on Washington. The government waited until less than three weeks before the election to sue, and “the United States’s claimed emergency, at least in part, is a self-constructed one,” the majority wrote. Judge Patrick Bumatay dissented, arguing the federal government has “a sovereign interest in safeguarding federal elections.” Gov. Gavin Newsom said Trump was “illegally trying to seize powers.”
The administration’s case against noncitizen voting is not over. The department is still fighting immigrant and voting rights groups over the list, and it has backed a separate lawsuit, filed in May, claiming California does not remove ineligible voters from its rolls quickly enough. In January, Carter also threw out its demand for the unredacted voter files of about 23 million Californians, calling the request “unprecedented and illegal.”
That is the pattern to watch. A government that is willing to ask a court, with a week to go, to freeze the ballots of 20,000 people on a list that does not check out has shown what it will try next time. Congress passed the Voting Rights Act to stop exactly this, and the Justice Department’s job is to enforce it, not to test how far a last-minute list can go. A special master’s hearing on the accuracy of the list had been set for about a week from now, and that scrutiny is what the department walked away from.
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