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Saying he had concerns it could disenfranchise voters during the midterm election, a federal judge on Tuesday seemed skeptical of the Trump administration’s demands that California election officials set aside 20,000 ballots that it claimed could have been mailed to noncitizens.
“Some of these may be very valid voters, and that’s my concern about disenfranchisement,” said U.S. District Judge David O. Carter, an appointee of President Bill Clinton.
Carter said he would issue a formal ruling by Wednesday, but he told the courtroom he was likely going to appoint a special master to weigh the evidence both sides present at a hearing in two weeks. That means his final ruling might not come until after the election.
He said he didn’t want to “just wing it with a ruling” based on last-minute evidence the federal government submitted to the court the night before Tuesday’s hearing.
Carter also suggested that his ruling would order federal authorities to stop telling election officials that they could face criminal charges if they didn’t comply with the Trump administration’s demands. The Trump administration on Friday sent letters to California election officials telling them to set aside ballots from suspected noncitizens, and threatened them with criminal charges if they allowed those people to vote.
“This court believes it would be wise that any threats to state or county (election) employees cease immediately,” Carter told the courtroom.
Carter’s remarks point to yet another likely legal blow to the Trump administration as it seeks to validate President Donald Trump’s longstanding claims of widespread election fraud favoring Democrats. Experts and election officials say those claims are meritless.
Bill Essayli, the first assistant U.S. attorney in Los Angeles, acknowledged that the government’s list of 20,000 people may contain citizens, but he said the possibility that noncitizens were voting illegally was too great a threat.
“I would ask the state how many illegal votes is OK for them?” Essayli said. “It cannot be that the state has a right to facilitate the counting and tabulation of noncitizen votes. There’s no right to that.”
The Trump administration sued California earlier this month saying election officials refused to comply with a 48-hour federal deadline to set aside the ballots of up to 20,000 people the administration had flagged as possible noncitizens until the voters’ citizenship could be verified.
The administration sought a temporary restraining order forcing the state to comply.
California officials argued there was no way they could since they were busy overseeing the election. They also called the demand an illegal effort to meddle in state-run elections that could disenfranchise legal voters.
“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,” said Anne Bellows, a deputy attorney general with the California Department of Justice.
Judge points to immigrant arrests
State and county officials also have questioned the methodology the federal government used to flag possible noncitizens.
In a court filing, Los Angeles County officials said that a sampling of 200 names from the federal list, which included people from all over California, found that many of them were likely citizens and that most had not voted before and were not sent ballots. Federal investigators re-reviewed those 200 names and found that only four were citizens, Essayli told the judge.
“We stand by the reliability of the information,” he said. “We take our obligations and ethics very seriously.”
Carter noted that, last week, federal prosecutors charged 28 California green card holders for allegedly voting or registering to vote in violation of laws prohibiting noncitizens from participating in elections.
He said that if noncitizens really are voting in as large of numbers as the Trump administration claims, there’s nothing stopping federal prosecutors from finding them and charging them without the risk of blocking legal voters from having their ballots counted.
“If it’s this big, you’ve got a remedy for goodness sakes,” Carter told Essayli. “Go out and indict.”
After the hearing, Essayli said from the courthouse steps that the state could “resolve this today.”
“They just seem disinterested in getting to the bottom of this,” Essayli said, noting that the number of ballots in question could tip smaller elections. “A lot of elections are decided by tens of votes or hundreds of votes.”
9th Circuit ruled against Trump
The hearing came a day after two judges on a three-judge panel of the 9th U.S. Circuit Court of Appeals rejected an emergency effort from the Trump administration to bypass Carter’s courtroom.
The Trump administration sought an emergency order from the appellate court, claiming that Carter didn’t schedule a hearing fast enough. The two judges said prosecutors’ arguments about urgency didn’t hold up.
Their ruling noted that the prosecutors have been making claims about illegal voters on California’s voter rolls since July and could have taken action any time since, so their “claimed emergency, at least in part, is a self-constructed one.”
Judge Mark Bennett, a Trump appointee, noted in a concurring opinion that he had “serious doubts” about the federal government’s claims that prosecutors could “superintend or intervene in a state’s election administration.”
He wrote that Congress granted states — not the executive branch — authority over elections.
In a dissenting opinion, Judge Patrick Bumatay, another Trump appointee, argued that “federal law precludes California from commingling ballots likely cast by aliens with legitimate ballots, because it encourages and induces illegal voting.”
“Stopping that practice for those identified as likely noncitizens is the bare minimum,” Bumatay wrote.
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