DOJ Goes Over a Silent Judge's Head to Freeze 20,000 Suspected Noncitizen Ballots in California

The Justice Department gave a federal judge in California a deadline: rule by noon Thursday on whether the state must set aside the mail ballots of more than 20,000 people federal agencies flagged as likely noncitizens. Noon came and went. U.S. District Judge David O. Carter said nothing. So the department went over his head.

On Thursday, federal prosecutors filed a notice of appeal to the Ninth Circuit Court of Appeals. "The Court has not ruled on the United States' application," the filing says. "Given the critical and exigent nature of the relief sought, the Court's silence is a constructive denial." Fox News correspondent Matt Finn flagged the move, reporting that DOJ "had asked CA federal Judge Carter to rule by today at noon and he apparently did not."

In plain terms: when a judge won't decide something that can't wait, sitting still is a decision. DOJ is asking the appeals court to treat it like one.

Why the clock matters

The urgency comes straight from the other side's own papers. Los Angeles County Registrar Dean Logan told the court his office had already processed more than 331,000 mail ballots since Oct. 11, with "much higher volumes" coming. And once a mail ballot is pulled out of its envelope, "there is no way to associate the voter with that ballot," the county wrote, as DOJ quoted in its Wednesday request.

That means every flagged ballot that gets opened is gone for good, mixed in with everyone else's. "This is an emergency," DOJ lawyers wrote. "Every minute of processing that occurs without segregating the ballots of suspected non-eligible voters causes untraceable disenfranchisement and dilution of the votes of United States citizens." Then the line that sums up the case: "There is no un-ringing the bell, which is ringing as we speak."

The department isn't asking anyone to be thrown off the rolls. "The United States does not seek to remove voters from the rolls," the filing says. It wants those ballots held to the side, unopened, until citizenship is checked. Think of it as a hold at the bank while a suspicious check clears, not a closed account.

A hearing four days before the election

Carter did act on one thing: he set his first hearing on the request for Oct. 30, according to Ballot Access News and MyNewsLA. That is four days before Election Day on Nov. 3. By then, far more ballots will have been opened.

Carter, a Bill Clinton appointee, wasn't the first judge on the case. It was assigned Tuesday to Judge John Holcomb, a Trump appointee, then moved to Carter on Wednesday after he agreed to take it as related to an earlier case, Democracy Docket reported. That earlier case was DOJ's lawsuit for California's full voter rolls, which Carter threw out in January in a 33-page order.

What DOJ says it has

The list didn't come from nowhere. Federal officials say Homeland Security Investigations and U.S. Citizenship and Immigration Services narrowed more than 175,000 possible noncitizen voters down to just over 20,000 people who are registered in California, were mailed a ballot and are "highly likely to be noncitizen aliens" (DOJ memo). DOJ gave the state that list on Oct. 13, asked it to "segregate—not cancel" those ballots, and sued on Oct. 15 when California didn't.

On Oct. 19, prosecutors charged 28 green card holders across California with election and immigration crimes, saying they falsely claimed citizenship to register and that many went on to vote. "Each of the 28 defendants charged today appears on the list of more than 20,000 likely noncitizen registrants we provided to California election officials last week," said Acting Deputy Attorney General Trent McCotter. All are presumed innocent until proven guilty.

"We're going to charge as many as we can," McCotter told Fox Business on Thursday morning, per the Justice Department. "If you're not a citizen and you get a ballot you most certainly should not vote with that ballot, it will be a crime. We will find you and you'll be charged."

First Assistant U.S. Attorney Bill Essayli, whose Los Angeles office is running the case, called 20,000 "the floor" (MyNewsLA). "California's election systems have been unsecured for years," he posted Thursday. "When I was in the legislature, I raised the issue of noncitizens voting and was ignored."

California's answer: we can't check

California and Los Angeles County want the whole case dismissed. They argue DOJ has no power to use 18 U.S.C. § 611, the federal law that makes it a crime for noncitizens to vote in federal elections, to tell states how to handle ballots, Democracy Docket reported. The county calls the list "unreliable" and says only 7,035 of the records carry Los Angeles addresses (county opposition).

But the county's own sworn declaration is what DOJ keeps pointing to. Its registrar "is not equipped or authorized to verify voter citizenship," an assistant registrar wrote, and California has not signed up for the federal SAVE citizenship-check system that dozens of other states use. We laid out that admission here. As Essayli put it, California relies on "whatever a person writes on their registration form."

So the state says it can't verify who's a citizen, can't trace a ballot once it's opened, and shouldn't be made to hold any aside. That is the gap DOJ is asking a higher court to close.

What's next

The Ninth Circuit now has to decide whether a judge's silence counts as a ruling it can review, Democracy Docket noted. If it does, it could order the ballots held before Carter's Oct. 30 hearing. The losing side could then ask the Supreme Court to step in. Either way, the clock keeps running.

The fight over noncitizen voting is playing out on several fronts. This week a Biden-appointed judge stopped DHS from door-knocking to check on suspected noncitizen voters in nine states through Election Day. Meanwhile, ballots keep coming in, and in Los Angeles they keep getting opened.