Los Angeles (AP) — A federal judge in Los Angeles heard arguments Tuesday over whether the Department of Justice can bar California from counting the ballots of some 20,000 people until it can confirm they are U.S. citizens.
The hearing before U.S. District Judge David O. Carter comes amid statewide voting in the midterm election that concludes next Tuesday. Noncitizen voting has been a key focus of President Donald Trump's administration as the country's
voters decide which party will control Congress for the rest of his term, though available data indicates the illegal practice is exceedingly rare.
The Republican administration sued election officials in heavily Democratic California in mid-October, accusing them of failing to meet a 48-hour deadline to review its list of 20,000 names it alleged were likely noncitizens on the state’s voter rolls.
First Assistant United States Attorney Bill Essayli argued Tuesday that the Justice Department’s demands would not significantly disrupt the ongoing election.
“We have not asked to void any ballots,” he said. Instead, the government was seeking to “work with” California officials to “safeguard” the election.
He said testimony would explain how the list was compiled.
“The case rises and falls on the credibility” of the flagged names, he told the judge, arguing the state has an obligation to investigate before counting those voters' ballots.
Lawyers for California and Los Angeles County forcefully challenged the federal arguments. They said the federal government has not specified how or when it obtained the voter file, leaving open the possibility the list was inaccurate or outdated.
They also questioned the government’s reliance on a third-party service to determine Social Security numbers used in their effort, challenging the reliability of the list.
Christopher Pelham, an attorney for the Los Angeles County registrar, also argued that county staff wouldn't be able to use existing software to separate out ballots from the thousands it receives daily. Instead, staffers would have to sort them by hand in a time-consuming process.
“There is no way to do that by Tuesday, and not even by the December certification deadline,” Pelham argued.
California officials previously warned in court filings that complying with the Trump administration’s demands could “disenfranchise legitimate voters,” delay election certification and “cause general uncertainty in the election results.”
The federal government sought emergency relief from the 9th U.S. Circuit Court of Appeals before Tuesday's hearing but was rebuffed Monday by a divided three-judge panel.
While their ruling mainly called it premature for an appeals court to get involved before the district judge could hear the case, two of the three judges wrote separate concurrences making it clear they wouldn’t support setting aside the ballots.
The dissenting judge argued, however, that state and federal laws prohibiting noncitizen voting compel the state to verify potentially illegal ballots before they can be counted. Failing to do so, he wrote, could cause irreparable harm to the election.
California mails ballots to all active registered voters. The state has roughly 23 million registered voters, and more than 3 million have already cast ballots.
Los Angeles County Assistant Registrar-Recorder Monica Flores said in court filings that her staff reviewed a sample of 200 records from the federal list. She said the sample included canceled or inactive registrations, people with no voting history and voters whose records indicated they were born in the U.S. — which the filing called “strong evidence of citizenship.”
Nicolas Bartell, associate director of the Fraud Detection and National Security Directorate at U.S. Citizenship and Immigration Services, said his department double checked those 200 records and found that only four likely were citizens and one person was deceased.
In a court filing Monday, Bartell gave the most detailed account yet into its methodology for developing the list. Notably, the federal government is not using the SAVE database, which judges elsewhere have ruled illegally aggregates sensitive personal data and risks purging eligible voters from the rolls.
He wrote that the agency cross referenced publicly available voter registration data with a combination of data from a third-party data collection site, Department of State records and Social Security Administration records.
