california ballot

The U.S. Justice Department moved Friday to voluntarily dismiss its lawsuit challenging the counting of 20,000 ballots in California, arguing the relief it sought is now impossible given Tuesday’s midterm election has concluded.

The Justice Department had sought a court order requiring state and Los Angeles County election officials to set aside the ballots, which it alleged could be from noncitizen voters. U.S. District Judge David O. Carter and a three-judge panel of the U.S. 9th Circuit Court of Appeals had both rejected that request, and the U.S. Supreme Court denied a Trump administration appeal to those lower court rulings — with no noted dissents.

Carter had ruled that the government’s request was probably unconstitutional, given the Constitution gives states and Congress power over elections, not the executive, and probably ran afoul of federal law barring sweeping vetting of voter rolls in the immediate run-up to an election.

However, he had set a schedule moving forward for additional fact-finding in the case — including by appointing a special master to dig into the data the federal government was relying on to assert the 20,000 voters were potentially noncitizens.

In a filing before Carter on Friday, Assistant U.S. Atty. Julie Hamill in Los Angeles wrote that that court process was no longer necessary, as it would not provide the relief that the federal government was seeking by filing its lawsuit.

“In light of the Supreme Court’s denial, the United States is evaluating how to best ensure that American votes are protected, including by preventing vote dilution by noncitizens. In addition, by the time of this Court’s hearing on Nov. 13 in this matter, California will have already commingled the challenged ballots with lawful ones,” Hamill wrote. “There is then no way to get the challenged ballots segregated. As a result, the relief the United States sought and needed is no longer available — rendering voluntary dismissal necessary.”

Hamill wrote that the Trump administration had sought to “protect American voters and to prevent the irreparable harm of state and local election officials including illegally cast votes in the final vote tabulation,” but had “exhausted its appeals to obtain timely relief” by going to — and being denied by — the Supreme Court.

First Assistant U.S. Atty. Bill Essayli’s office in Los Angeles — where Hamill works — referred questions about the filing to the Justice Department.

Kiersten Pels, a Justice Department spokesperson, said the litigation at issue was “moot” but that the Trump administration “is not backing down” in its targeting of alleged noncitizen voters, including in a separate case in which it is still demanding that California “conduct proper list maintenance, including removing noncitizens from the state’s voter rolls — which will be crucial to ensure fair elections in the future.”

Secretary of State Shirley Weber, a defendant in the case, did not immediately respond to a request for comment Friday.

L.A. County Registrar-Recorder/County Clerk Dean Logan, another defendant, said he was “pleased that the administration has accepted the clarity of the court findings” against it and ended its lawsuit.

“At each stage of this election, and in response to the Department of Justice, we have been clear that state and federal law sets well-defined standards for verifying and challenging voter eligibility,” Logan said. “Our commitment and focus remain on the fair, secure, accurate, and legal processes we are engaged in to complete and certify the election.”

California Atty. Gen Rob Bonta, in a statement, said that after losing in every court it tried, including the Supreme Court, “the Trump Administration has given up its latest unlawful effort to interfere with California’s elections and disenfranchise eligible voters.”

Bonta added: “Rest assured: California has and always will defend your fundamental right to vote.”

Tricia Webber, president of the California Assn. of Clerks and Election Officials, said state election officials “are very pleased” with the voluntary dismissal of the case — which she said “affirms that our elections are administered with the utmost integrity and care.”

“At the same time, we are under no illusions. We recognize that this issue is unlikely to go away permanently, and we remain fully prepared to continue defending California’s election administration against future challenges,” she said. “We will always stand ready to protect every eligible voter’s right to participate in a fair and secure election process.”

The administration’s filing — three days after President Trump’s party took a drubbing in the midterms — marks a sudden and unremarkable conclusion to an unprecedented court battle in the days leading up to the election, when the federal government sought permission from the courts to force state and local elections officials to set aside votes during an ongoing election.

Carter had rejected the administration’s request for immediate intervention in a blistering Oct. 28 ruling, calling its allegations about the ineligible voters “not credible” and warning that the proposed action could disenfranchise eligible voters and sow chaos in the ongoing midterm election.

“This request violates longstanding constitutional principles mandating that states have control over their elections,” Carter wrote. “If [the Trump administration’s] last-minute request for relief were granted, either party could create chaos for their own political purposes to disrupt the election process.”

While Justice Department officials characterized the relief it had requested from the court as “targeted and modest,” Carter had reached a sharply different conclusion — writing that the administration’s demands would “wreak havoc” on an ongoing election and “create a chilling effect on election workers and voters alike, and discount the votes of United States citizens.”

The reliability of the government’s list became a central issue in the litigation. Logan’s office said its review of about 200 flagged voters found that a substantial portion appeared to have been born in the United States, a finding Homeland Security officials disputed.

Election officials elsewhere in California also reported problems with the lists, including names of people who did not appear to live in their counties or to be registered voters. Justice Department officials sent letters to election officials across the state, demanding that they sequester flagged ballots and warning of potential criminal penalties if they failed to comply.

The three-judge 9th Circuit panel that heard the federal government’s appeal to Carter’s ruling — composed of two appointees of President Trump and one of President Biden — came to some of the same conclusions Carter did in a 2-1 ruling. One of the Trump appointees dissented, writing that he would have ruled for the administration.

Carter ordered an expedited hearing on the state’s and county’s motions to dismiss the case and the government’s motion for a preliminary injunction. He ordered all parties by Nov. 6 to submit witness lists, including experts, regarding the reliability of the list of voters and the methodology behind it. He ordered both sides to appear at the Nov. 13 hearing, with submitted witnesses prepared to take the stand.

Ending the litigation now will forestall that process to detail the origins of the administration’s list — which is still being used by federal prosecutors in California to target individual voters for criminal prosecution.

WASHINGTON  — On the day before the midterm election, Trump administration lawyers asked the Supreme Court to intervene and set aside ballots from 20,000 California voters who the administration says may not be citizens.

Solicitor Gen. D. John Sauer filed an emergency appeal on Monday.

“The Court should issue a limited injunction directing California to stop commingling suspected illegal ballots with legal ones,” he wrote, “pending completion of the United States’ appeal to the 9th Circuit and further review in this Court.”

He said the court should require “California to segregate mail ballots from persons whom the United States has identified as likely non-citizens. The court should also enter an administrative injunction to that effect while it considers this application.”

It’s not clear whether the court will see this as an emergency.

The appeal goes first to Justice Elena Kagan. She could ask for a response from California, which would take days.

So far, the administration has lost before a federal judge in Los Angeles and twice at the 9th Circuit Court of Appeals in San Francisco.

Those judges said that Trump’s lawyers were wrong on the Constitution and that their complaint came too late for this election.

In May, more than 23 million Californians were registered to vote, and the majority lean in favor of Democrats. But Trump claimed again last week “there are hundreds of thousands of bad ballots, bad votes, in California. Millions, in my opinion.”

In mid-October, the Trump administration sued and said federal courts should require California and Los Angeles County to “set aside vote-by-mail ballots from persons identified by the federal government likely to be non-citizens.”

Federal law says that within 90 days of an election, officials may not “systematically remove the names of ineligible voters from the official lists of eligible voters.”

Separately, the Supreme Court also has repeatedly frowned on “late-breaking, court-ordered rule changes” involving elections.

The California court cases have also put a spotlight on the state vs. federal divide in election law.

Usually, federal laws are deemed to be the “supreme law” and override state laws that are in conflict. No one disputes U.S. prosecutors may bring criminal fraud charges against noncitizens who violate a federal law by registering with a state to vote and casting an illegal ballot.

But election rules and procedures are different. The Constitution says “the Times, Places and Manner of holding elections for Senators and Representatives shall be prescribed in each state,” unless Congress acts by law to “alter” its regulations.

The 9th Circuit judges in Friday’s opinion said that “this clause expressly dictates which sovereign has the authority to prescribe the manner in which congressional elections are conducted.”

“If the United States believes different procedures are necessary for vote-by-mail ballots, we believe it should take that suggestion to Congress, not the courts,” said Judges Mark J. Bennett, a Trump appointee, and Gabriel P. Sanchez, a Biden appointee.

Dissenting Judge Patrick J. Bumatay, a Trump appointee, called the administration’s proposal to separate the 20,000 ballots a “reasonable request” and a “modest remedy” for the problem of illegal voting.

The majority cited a 2013 opinion written by the late Justice Antonin Scalia.

“The Elections Clause functions as a default provision,” he wrote. “It invests the states with responsibility for the mechanics of congressional elections,” unless Congress adopts a different rule.

Scalia spoke for a 7-2 majority that rejected an Arizona law that required voters to show documentary proof of their citizenship when registering to vote. In the National Voter Registration Act of 1993, Congress said voters may register to vote by filling out a form and attesting under oath they are citizens.

California does the same under state law.

Scalia said the federal voter registration law did not allow Arizona to adopt new and stricter rules.

In dissent, conservative Justices Clarence Thomas and Samuel A. Alito said they would go farther to protect the states from federal interference in elections.

“Given states’ exclusive authority to set voter qualifications and to determine whether those qualifications are met,” Thomas said the Arizona restriction should have been upheld.
“The Constitution reserves for the States the power to decide who is qualified to vote in federal elections,” Alito added.

Last month, Trump’s prosecutors brought fraud charges against 28 lawful immigrants in California who are alleged to have registered or voted in the past even though they are not citizens. They did so under a 1996 immigration law which made it “unlawful for any alien” to vote in a federal election.

The notion of segregating potentially suspect ballots is not a new issue for the Supreme Court.

In November 2020, Alito agreed with Pennsylvania state officials and said they should set aside late-arriving mail ballots to be counted separately.

In response to the COVID-19 pandemic, state election officials and the state Supreme Court agreed to waive part of the state’s law and allow for counting mail ballots that arrived up to three days late.

Republicans strongly objected. That led to Alito’s order. But in the end, the small number of late votes made no difference because the Democratic candidate, former Vice President Joe Biden, decisively won Pennsylvania’s votes and defeated Trump.

The California dispute is different because the state has not changed its voting rules or election procedures. Instead, it is the Trump administration that sought a late change in California’s voting rules and election procedures.

A federal appeals court for the second time Friday denied a Trump administration request to block 20,000 ballots from California voters the administration alleges may be noncitizens — ruling that the administration had failed to show that “such extraordinary relief, during an ongoing election, is clearly required by law.”

The three-judge panel of the U.S. 9th Circuit Court of Appeals — composed of two appointees of President Trump and one of President Biden — ruled 2-1 that the U.S. Constitution gives the state and Congress the power to decide how elections are run, and that allowing the Trump administration to “misuse” federal statutes to “prescribe” how California must process ballots would “override the plain and manifest dictates of the Constitution itself.”

“Because Congress has not exercised the specific power granted to it under the Elections Clause to override California’s established laws for challenging ballots or removing ineligible voters, the State Legislature’s statutory scheme remains the only method to do so,” the judges found.

The panel’s majority — comprised of Trump appointee Mark J. Bennett and Biden appointee Gabriel P. Sanchez — wrote that “if the United States believes different procedures are necessary for vote-by-mail ballots, we believe it should take that suggestion to Congress, not the courts.”

They also wrote that separate federal law prescribes sweeping changes to voter lists 90 days prior to an election, especially given questions about the reliability of the Trump administration’s list of purported noncitizens.

“The suspect reliability of these lists found by the district court reflects the concern Congress sought to mitigate with the 90-day quiet period,” they wrote.

Judge Patrick J. Bumatay, the other Trump appointee on the panel, dissented — arguing that his colleagues erred in denying a basic request by the Trump administration to ensure only citizens are voting.

“The federal government proposes a modest remedy — stopping California from mixing the ballots of citizens and suspected noncitizens,” Bumatay wrote. “This solution would not cancel any vote but would allow time to verify the eligibility of suspected noncitizens. The district court, and now our court, denies this reasonable request.”

This article will be updated.

A federal judge in Los Angeles denied a Trump administration request Wednesday to immediately block California elections officials from counting the ballots of 20,000 voters whose citizenship the administration questions in a blistering opinion.

U.S. District Judge David O. Carter ruled that the administration’s allegations were “not credible” and that the intervention it sought would violate a host of federal laws, sow chaos in the ongoing midterm election, likely lead to the disenfranchisement of legitimate voters and foster future political meddling in elections.

“This request violates longstanding constitutional principles mandating that states have control over their elections,” Carter wrote. “If [the Trump administration’s] last-minute request for relief were granted, either party could create chaos for their own political purposes to disrupt the election process.”

Carter, an appointee of President Clinton, wrote that never in American history “has the federal government, on the eve of an election, sought to coerce a state and local government to abandon their own Constitutional elections procedures and bend to the will of the Executive Branch,” and that, in bringing its suit, the Trump administration was asking the court to “believe that it reigns as a sole sovereign.”

“But California and its people are sovereign, too,” Carter wrote.

Carter’s ruling was the second to deny the Trump administration a temporary restraining order against the state and Los Angeles County this week, after a three-judge panel of the U.S. 9th Circuit Court of Appeals denied the government’s emergency request in a separate order Monday.

Carter ruled following a 3½-hour hearing Tuesday, where a slew of attorneys for the state, county and independent voting rights groups argued against the administration’s demands.

First Assistant U.S. Atty. Bill Essayli — who is the top federal prosecutor in L.A. and argued for the Trump administration at Tuesday’s hearing — did not immediately respond to a request for comment on the ruling Wednesday. After Tuesday’s hearing, he suggested the administration was likely to appeal Carter’s ruling if it didn’t immediately halt the counting of the flagged ballots.

This is a developing story and will be updated.

In a rare Sunday hearing, a federal appeals court judge appointed by President Trump questioned how the Trump administration’s request to intervene in California’s ongoing midterm election in order to force state officials to set aside 20,000 ballots from voters whose citizenship it questions squares with the U.S. Constitution.

Judge Mark J. Bennett said that while the executive branch is “unhappy” with what California law requires for ensuring voters are citizens, the state has the right to determine the manner of its elections under the Elections Clause of the Constitution and Congress has not challenged that process, despite having the ability to do so.

“It seems to me that you want us to issue an injunction that is entirely inconsistent with the law the California legislature has adopted pursuant to the Elections Clause,” Bennett said. “How can we do that?”

Matthew Donnelly, a Justice Department attorney, said the Trump administration has good reason to believe those ballots are from ineligible noncitizen voters, and has the legal right under seperate federal criminal law to challenge their tabulation until state officials can prove otherwise.

Donnelly said both federal criminal law and state election law bar noncitizen voters from casting ballots, but “the problem is that California isn’t interested in enforcing that provision.”

The exchange came during an hour-long hearing before a three-judge panel of the U.S. 9th Circuit Court of Appeals, over the Justice Department’s unprecedented emergency request that the court order California Secretary of State Shirley Weber and Los Angeles County Registrar-Recorder/County Clerk Dean Logan to immediately stop counting ballots from the 20,000 flagged voters until they can definitively prove those voters are U.S. citizens.

The appellate panel — on which Bennett was joined by circuit Judges Patrick J. Bumatay, another Trump appointee, and Gabriel P. Sanchez, an appointee of President Biden — did not issue a ruling, though a decision is expected soon given the emergency nature of the appeal.

How it will rule is unclear, though both Bennett and Sanchez hammered Donnelly with questions about how the Trump administration’s position squared with the law.

Rick Hasen, director of the Safeguarding Democracy Project at UCLA School of Law, wrote online Sunday that the court seemed “very likely to reject” the Trump administration’s appeal, with Bennett and Sanchez having “expressed great skepticism on both jurisdiction and the merits.”

In addition to questioning its constitutionality, Bennett also questioned how the appellate court even had jurisdiction over the case, given that the Trump administration appealed the matter to the appellate court before the lower district court had a chance to assess the facts in the case or issue an order.

“How do we have jurisdiction when the district court has said it’s going to rule expeditiously?” Bennett said. “I don’t see how we have jurisdiction.”

Bennett also questioned why the appellate court should ignore the claims of state elections officials that having to comply with the Trump administration’s demands in the few remaining days before the Nov. 3 election would be catastrophically disruptive to the election, given that the lower court has had no chance to assess those claims.

“Isn’t that sufficient to give us pause as to whether we should do exactly what [a state expert] avers is going to cause a catastrophe?” Bennett asked.

Bennett’s questions evoked many of the arguments made by the state in its own filings in the matter, which were repeated by California Deputy Solicitor Gen. Samuel P. Siegel during the hearing.

Siegel said there was “nothing” for the appellate court to review, given there has been no fact finding and no order out of the lower court, and that the administration’s demands were unconstitutional and illegal. He said the court did not have to wrestle with many of the arguments being put forward by the Trump administration, because it should simply reject the appeal for lack of jurisdiction and send the matter back down to the lower court.

Bumatay appeared most interested of the three judges in the damage done when noncitizens do vote, and the underlying question of how the state should handle objections to alleged noncitizen voters when they arise.

Siegel and Seth Waxman, an attorney for Logan, said there are existing processes for that — which require the challenger to present extraordinary proof, which they said the Trump administration has not done for the 20,000 voters it has flagged.

Sanchez repeatedly questioned the provenance of the administration’s list, asking which third parties were involved in providing the data. Donnelly could not answer, which Sanchez said raised questions about the reliability of the list.

The Justice Department appealed the case after a lower district court judge declined to immediately rule last week on its request for a temporary restraining order barring California officials from tabulating the flagged ballots.

In court filings, the administration argued that once mail ballots are removed from their envelopes in California, or a ballot has been cast in person, there is “no way to associate the voter with the ballot” or resegregate it from other cast ballots.

Attorneys for California, Weber and Logan have argued the demands are illegal, impossible to comply with before the Nov. 3 election and based on deeply flawed federal immigration and third-party data sets shown to be inaccurate and inclusive of legitimate voters.

In court filings, they have argued that the Trump administration’s argument “rests on mere suspicion, aroused by suspect data,” and that its lawsuit is at best “a reckless political stunt” and at worst “threatens to disenfranchise thousands of Californians this election.”

Independent elections experts have said the Justice Department’s efforts break with longstanding department policy of not wading into election-related issues within 90 days of an election, to avoid disenfranchising legitimate voters.

They also have said the Trump administration’s lists of alleged noncitizen voters and its authority to intervene are both questionable, including because the U.S. Constitution empowers states to run elections with oversight from Congress, not the executive branch.

The Justice Department sued California, Weber and Logan on Oct. 15, two days after Acting Deputy Atty. Gen. Trent McCotter wrote to Weber and Logan giving them 48 hours to set aside the ballots for the 20,000 flagged voters — whom McCotter claimed were “likely noncitizens.”

First Assistant U.S. Atty. Bill Essayli, the lead federal prosecutor in L.A., has claimed federal authorities have “overwhelming evidence” that tens of thousands of noncitizens are registered to vote in California, and has defended the methods used to identify those voters. He and other federal prosecutors in the state also recently charged 28 legal permanent residents in California with election-related crimes, including illegally registering to vote.

On Friday, the Justice Department sent letters to county elections offices statewide with demands that they segregate ballots from voters the Trump administration believes are noncitizens, drawing from the same list of 20,000 at issue in the case against Weber and Logan. In those letters, the Justice Department gave the county officials 48 hours to comply, and threatened them with criminal punishment if they refuse.

State officials have said neither Essayli nor other Trump administration officials have provided proof to back up their claims, and that their list of 20,000 voters is clearly inaccurate. Logan said a preliminary review of a subset of those voters found many were born in the U.S., weren’t registered and had never voted.

More than 3 million people have already cast ballots in California — and more than 500,000 have already done so in Los Angeles County.

The challenge to the 20,000 ballots in California is just the latest Trump administration attempt to intervene in state-run elections ahead of the midterms.

Federal judges in dozens of states have rejected Justice Department lawsuits demanding the states turn over their voter rolls to the Trump administration. Federal judges also have rejected multiple Trump executive orders trying to institute national voter ID and citizenship checks, and his administration’s attempt to empower the U.S. Postal Service to vet mail ballots.

Other cases — including over the Trump administration using unproven and inaccurate federal data sets to question the citizenship of state voters — are pending.

Democrats and voting rights groups are also bracing for fresh litigation from the Trump administration to challenge the outcome of pivotal election results the president doesn’t like — and are already defending against a lawsuit the Justice Department brought at Trump’s urging in Alaska, preemptively challenging a Democratic win in the Senate race there based on a third candidate sharing a similar name as the Republican incumbent.

Times staff writer Brittny Mejia contributed to this report.