A federal judge overseeing a case in which the U.S. Department of Justice is hoping to force California election officials to set aside the ballots of 20,000 alleged noncitizen voters will issue his ruling by Wednesday.
U.S. District Judge David O. Carter heard arguments from the Justice Department and attorneys for the state during an afternoon hearing in a downtown Los Angeles courtroom. At the end of the session, he said he would render his decision by the next day.
In addition, Carter suggested setting another hearing in about two weeks — after the general election — with expert witnesses for both parties before rendering a final decision. He noted that Dec. 3 is California’s deadline to certify election results.
Related: DOJ request for California ballots of ‘likely noncitizens’ be set aside lands in court Tuesday
In the meantime, the judge said threats against election workers should end immediately.
“This court believes it would be wise that any threats to state and county elected employees cease immediately. Goodnight,” Carter, who was appointed by former President Bill Clinton, said before exiting the courtroom.
In recent weeks, federal prosecutors have implied that election workers who process ballots they’ve been told may have been cast by a noncitizen could be held criminally liable.
The court case is being closely watched nationwide because of its implications one week before Election Day, as the Trump administration continues its efforts to root out what it has alleged is voter fraud, even though data doesn’t support the claim that such illegal activity is widespread.
The Justice Department is seeking an emergency temporary restraining order, suing California Secretary of State Shirley Weber and L.A. County Registrar Dean Logan in hopes of forcing election officials to temporarily set aside the ballots in question — either by not mailing a ballot to an individual on the federal government’s list if one hadn’t been sent yet or not processing a ballot if the person had already voted — until that individual’s citizenship status could be confirmed. If verified, the ballot could then be processed and counted.
The Justice Department has alleged there are 20,000 noncitizens on California’s voter rolls who aren’t eligible to cast ballots, but Weber previously said the federal government hadn’t provided proof.
During Tuesday’s hearing, First Assistant U.S. Attorney Bill Essayli argued the case needed to be resolved urgently, as hundreds of thousands of marked ballots have already been mailed back to local election offices in California.
Out of the nearly 6 million ballots issued to voters in L.A. County, more than 676,000 had already been returned as of Monday, the latest tally from the California secretary of state.
Essayli, a former Republican Assemblymember, said the federal government was making “a very narrow request” to temporarily set aside the ballots of “those suspected to be noncitizens.”
“We have not asked to void any ballots … (or) to cancel any ballots,” Essayli said.
“What we are doing is seeking to enforce” federal laws prohibiting voting by noncitizens, he added.
“We’re not telling California what they have to do. We’re telling (the state) what they can’t do. … What they cannot do is count these ballots once they’ve been informed of these prospective noncitizen ballots,” Essayli said.
But Michael Cohen, an attorney representing the state of California, said the Trump administration used data “known to be unreliable” in compiling their list of alleged noncitizens.
Christina McCall, another attorney for the state, noted that in July, DHS Secretary Markwayne Mullin sent a letter to Weber alleging that there might be more than 190,000 noncitizens on the state’s voter rolls, but by October that number had dropped to 20,000. They questioned the data’s reliability and credibility.
Attorneys for the state also said segregating out the 20,000 ballots would disenfranchise voters.
“What we are talking about is stripping voting rights of thousands of people,” until their innocence is proven, said Anne Bellows, an attorney for the state.
Essayli, meanwhile, said the goal is to “protect the votes of lawful citizens … and not have them diluted” by votes cast by noncitizens.
“It means something to be a United States citizen. It means something to participate in an election,” he said.
Earlier this year, Carter had dismissed a request by the Justice Department to compel the state to hand over its full voter registration list to the federal government.
Tuesday’s hearing also took place one day after an appeals court declined to rule on the case.
After Carter scheduled this week’s hearing, the federal government appealed to the 9th Circuit Court, arguing that a faster decision was needed to prevent further vote counting.
So a three-judge panel for the 9th Circuit Court of Appeals took the rare step of holding a session over the weekend to hear arguments.
Two of those three judges rejected the federal government’s argument Monday, writing that it “failed to allow the district court adequate opportunity to consider” the initial request.
Even before Monday’s appellate court decision, one of the judges during Sunday’s proceeding cast doubt on the Justice Department’s request for a temporary restraining order to separate out the ballots of voters it suspected of being non-citizens.
“It seems to me you want us to issue an injunction that is entirely inconsistent with the law the California Legislature has adopted,” Judge Mark Bennett, a Trump appointee, said at the appellate hearing. “How can we do that?”
“Congress and the California Legislature have said non-citizens can’t vote. This lawsuit is about, ‘We don’t like the way you’re sorting citizens from non-citizens.’ I just don’t see (federal law) telling California how to do the sorting.”
Even as the Justice Department has pursued legal actions in hopes of forcing California to comply with its wishes, it has also sought cooperation from local county election officials.
In recent weeks, the Justice Department has sent letters to county officials — including ones in L.A., Orange, Riverside and San Bernardino — asking them to set aside the mail ballots in question.
Logan, the L.A. County registrar who received the federal government’s letter in mid-October, said at the time that his office was consulting with the California secretary of state and attorney general on the matter.
Similarly in San Bernardino County, where election workers had been asked to set aside about 1,100 mail ballots, a spokesperson for the registrar’s office said Monday that the office was “currently reviewing it with counsel and the secretary of state’s office.”
Although the DOJ sent a letter to an Orange County official asking for help in reviewing the citizenship status of 1,754 people, it delivered the letter to the wrong person, according to county officials. The list was handed over to the county registrar by Monday evening, and county election officials are “evaluating the requests” to help determine the citizenship status of 1,754 people.
Riverside County received a letter late Monday asking the registrar to verify the citizenship status of 1,355 people whom the federal government alleged are “likely aliens.”
City News Service and The Associated Press contributed to this report.