Justice Department Tells California Counties to Set Aside Ballots It Says May Belong to Noncitizens

Federal prosecutors on Friday told election officials in 57 of California's 58 counties to start setting aside mail ballots cast by people the Trump administration has flagged as likely noncitizens, warning that officials who count those ballots could face criminal exposure. Los Angeles County, the one county left off Friday's list, had been sent a similar demand the week before.

The letters gave each county 48 hours to commit to working with the Justice Department and the Department of Homeland Security on sorting the people named into citizens and noncitizens. For anyone whose status could not be confirmed, counties were told to hold the ballots apart rather than tally them until the question was settled.

Bill Essayli, the first assistant U.S. attorney in Los Angeles, defended the move in a short statement. "The letters speak for themselves," he said. "Any election official who knowingly processes the ballot of a noncitizen is opening themselves to legal jeopardy."

The letters widen a fight that reached court on Oct. 15, when the Justice Department filed suit in federal court in Los Angeles against California, its top election official, Shirley Weber, and Los Angeles County Registrar-Recorder Dean Logan. The complaint says U.S. Citizenship and Immigration Services and Homeland Security Investigations flagged more than 20,000 people on California's rolls whom they consider likely noncitizens, and that federal officials handed that list to California on Oct. 13. It argues that a federal law making it a crime for noncitizens to vote in federal races overrides any state procedure that would let those ballots be counted, and it asks the court to bar their tabulation until each voter's citizenship is checked.

California began mailing ballots to every registered voter on Oct. 1, as state law requires, for the Nov. 3 general election.

The case is now moving on two tracks. In the trial court, Judge David Carter plans to take up the request at a Tuesday hearing. The department did not wait for him. On Thursday it took the dispute to the 9th Circuit, arguing that the judge's failure to act by its requested deadline amounted to a denial.

The appeals court moved quickly. In two orders on Saturday, it set a remote argument by Zoom for Sunday, Oct. 25, at 1 p.m. Pacific time before a panel of Judges Bennett, Bumatay and Sanchez. Each side gets 30 minutes. The department was given until 9 a.m. Pacific on Sunday to file an optional reply in support of its request and to answer Logan's motion arguing the appellate court has no jurisdiction and should dismiss. The state and county may reply by noon.

California and Los Angeles County each filed opposition briefs on Saturday. The state said Los Angeles County had mailed ballots to about 5.9 million registered voters by Oct. 5, and that 331,000 returned ballots had been verified and processed by Oct. 20. Under state law, once a signature is checked the ballot is pulled from its envelope, and because ballots are secret there is no way after that point to tell who cast it. That means many of the ballots the department wants held may already be impossible to find.

The state's filing also says the federal letters never explained how the list was built or offered proof that anyone on it lacks citizenship. If the appeals court grants the injunction, the state asked for a temporary pause so it can seek review by the full 9th Circuit.

State officials have attacked the list itself. In an Oct. 20 release, Weber's office said Los Angeles County checked a handful of the names and found significant accuracy problems. The office quoted its own court brief calling the suit "a reckless political stunt" that "threatens to disenfranchise thousands of Californians this election." Logan's office has said its check found people on the list who were born in the United States.

The state's brief notes that the Department of Homeland Security wrote to Weber in July saying there "may be as many as 190,832 non-citizens registered to vote in California." Weber asked for supporting information, and the brief says none was provided.

Sen. Alex Padilla, D-Calif., the top Democrat on the Senate panel that oversees federal elections, said Friday that the administration lacks the power it is claiming. "No matter how many lawsuits they file or how many election officials they threaten, they do not have the authority to interfere," he said.

Voting by noncitizens in federal elections is already a federal misdemeanor, and California requires people to swear to their citizenship under penalty of perjury when they register.