Eight days before the election, two federal prosecutors sent Washington’s secretary of state a list of about 400 names and told the state to set those voters’ ballots aside. On Thursday, a federal judge in Seattle said that was an order, not a request, and barred the Justice Department from repeating it.
“On this record, Defendants did not ask,” U.S. District Judge Jamal Whitehead wrote. “They directed Washington to set aside specific voters’ ballots.” He also wrote that “voters who followed the rules should not lose their votes to a list that even its authors admit may include citizens.”
His temporary restraining order covers the Justice Department, the Department of Homeland Security and the officials named in the suit. For two weeks, while counties count and certify the ballots already cast, they may not demand that election officials remove voters from the rolls, refuse them ballots or leave their votes uncounted. They also may not threaten election workers with prosecution for counting votes as state law requires. “A threat of prosecution made for that purpose is not legal advice,” the judge wrote.
The list was shaky from the start. The department’s own letter conceded that some of the people on it may have naturalized since the records were made, and one name dated to 1994. Secretary of State Steve Hobbs, a Democrat, called the list a “dumpster fire.” His office found that many of those named are U.S. citizens, and a significant number were not registered to vote in the state at all. At least 62 had not been sent ballots because their registrations were canceled or inactive.
The Black stake is in who gets caught by a list like this. Naturalized citizens are the people most easily mislabeled by federal records that never updated, and they include Black immigrants from Nigeria, Ghana, Haiti, Jamaica and Somalia who became citizens. Telling those voters their ballot may not count is what voter suppression looks like when it is done by memo. The department made a similar demand in California, where courts rejected it.
The department’s argument is that it is protecting the integrity of elections. That would carry more weight if the list had been checked before it was sent. The state’s review found citizens and unregistered people on it, and the demand came in the last days before the vote.
The suit was brought by OneAmerica Votes, the Latino Community Fund of Washington State and the United Food and Commercial Workers union. They argue that Washington, not Washington, D.C., decides whose ballot counts. The judge agrees for now.
The court will hear their request for a longer-lasting injunction on Nov. 18, two days after this order expires. The Justice Department should not need a second judge to tell it that a list of names is not a verdict on anyone’s citizenship.
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