DOJ Gives California Counties 48 Hours to Pull Suspected Noncitizen Ballots or Face Legal Action

The Justice Department went over Sacramento's head on Friday and straight to the people who actually count California's votes. Federal prosecutors sent letters to county election chiefs across the state giving them 48 hours to set aside mail ballots from voters the government believes are not U.S. citizens, and warning of legal action if they don't (San Francisco Chronicle).

The San Francisco Chronicle, which first reported the letters, confirmed at least four counties got one: Contra Costa, Santa Clara, Merced and Fresno. Contra Costa's came with a list of 407 names. Santa Clara's had 902. Merced's had 177. Los Angeles County's registrar, Dean Logan, told fellow election officials the letters went to "some or all" of the state's 58 counties (San Francisco Chronicle).

Bill Essayli, the top federal prosecutor in Los Angeles and the man leading the fight, put it in one line. "It's simple. California does not verify citizenship status. We did the work for them," he wrote Friday night. "Knowingly processing noncitizen ballots is a federal crime under 18 U.S.C. §§ 611 and 2. We will hold election officials accountable. No one is above the law" (@USAttyEssayli on 𝕏).

How we got here

On Oct. 13, the federal government handed California a list of more than 20,000 registered voters that Homeland Security Investigations flagged as likely noncitizens, after checking the state's voter files against federal immigration records. Under California law, every registered voter is mailed a ballot. The ask was simple: hold those ballots aside until citizenship could be checked. The state said no (Justice Department; Justice Department).

So on Oct. 15, the Justice Department sued California, Secretary of State Shirley Weber and Logan in federal court in Los Angeles. On Oct. 19, it charged 28 green-card holders in what it calls Operation Protect the Vote and arrested 11 of them. Every one of the 28 is on the 20,000-name list. Prosecutors say 23 of them voted illegally, casting 34 ballots in elections going back to 2020 (Justice Department; San Francisco Chronicle).

"Every illegal vote cancels out the vote of a lawful American citizen," said Acting Deputy Attorney General Trent McCotter. "California refused to look at that list. Today's charges show exactly what that refusal puts at risk" (Justice Department).

The clock problem

The fight now is about time. The Justice Department asked U.S. District Judge David O. Carter to rule on an emergency order by noon on Oct. 22. He didn't. He set a hearing for Tuesday, Oct. 27 instead, even though ballots are being processed every day and Los Angeles County's vote centers open Saturday (court filing; @jenvanlaar on 𝕏).

Prosecutors treated the silence as a no and went to the Ninth Circuit Court of Appeals. "Given the critical and exigent nature of the relief sought, the Court's silence is a constructive denial," the notice of appeal says (court filing; NBC News / Reuters). On Friday they asked for an order freezing those ballots while the appeal plays out, and want a ruling by Saturday (NY Post; Democracy Docket).

Their filing warns that Los Angeles County alone has already processed more than 331,000 mail ballots. Once a ballot is pulled from its envelope, there's no way to tell whose it was. "Once illegally cast ballots are counted and commingled with lawful votes, the resulting harm is impossible to remedy," the department wrote. "Otherwise, what is done can never be undone" (NY Post; Democracy Docket).

It's like a bank being told which checks in the pile are likely forged and depositing them anyway. Once the cash is mixed in the drawer, no one can pull the bad bills back out.

California's answer

California told the court the appeal is premature, arguing that the emergency request "has not been denied, either by court order or constructively," because a hearing is on the calendar (Democracy Docket). Logan accused the department of a "posture of intimidation" in his email to clerks (San Francisco Chronicle).

Essayli's reply is that the state has admitted the core problem in its own filings. "California admitted in its papers that it has no mechanism to verify citizenship or place of birth, relying instead on voter attestation," he wrote, meaning whatever a person writes on the form (@USAttyEssayli on 𝕏).

What comes next

The county deadlines run out this weekend, the Ninth Circuit has been asked to act by Saturday, and Judge Carter's hearing is Tuesday, one week before the Nov. 3 election. McCotter summed up the government's line on Friday: "If someone is a citizen, they absolutely have the right to vote; we'll help you count that vote. If they're not a citizen, they absolutely cannot vote; doing so would be a crime. They should not be sent a ballot, and that ballot should not be counted" (@TheJusticeDept on 𝕏).

California may not be the last. "There's a number of states that we're looking at," Attorney General Todd Blanche told reporters Thursday (Bloomberg Law).