Seattle; California: A US federal appeals court has rejected the Trump administration’s request to prevent California from counting mail-in ballots linked to people suspected of being noncitizens, as the Justice Department separately seeks to set aside ballots from more than 400 people in Washington state over similar concerns ahead of the November 3 midterm elections.
The San Francisco-based 9th US Circuit Court of Appeals ruled on Monday against the administration’s attempt to stop California from counting ballots cast by people on a list of more than 20,000 registered voters whom the federal government alleges may not be US citizens.
In a separate move, the Justice Department asked Washington state to set aside ballots from more than 400 people it suspects registered to vote without citizenship.
In a letter to the Washington Secretary of State’s Office, the department said it had identified 1,500 votes cast by the individuals in previous elections. It asked the state to set aside any ballots they submit in next month’s midterm elections until officials can confirm their eligibility. Washington has more than 5 million registered voters.
“We are asking the state to set aside those ballots until we can confirm they are legal voters,” Acting US Attorney Neil Floyd said at a news conference.
Washington Secretary of State Steve Hobbs said his office was reviewing the request. It also noted that it had received about 60 subpoenas from the Justice Department since last month seeking information about voters.
“We take our responsibility to protect voter information seriously and will only respond to requests that follow due process,” Hobbs said in an emailed statement. “We see what’s happening in California and don’t want Washingtonians to be harassed.”
The ruling by the 9th Circuit marked another setback for President Donald Trump’s efforts to expand the federal government’s role in overseeing elections ahead of the midterms, in which Republicans are seeking to retain control of Congress.
The majority opinion said the federal government was asking a court to intervene in an area traditionally controlled by states, warning that doing so during an ongoing election could create confusion for voters and election officials.
“In the midst of an ongoing election, the United States asks the federal court to dictate to a state legislature a matter squarely within the state's traditional domain, upending the state's policies in this regard and inviting disorder and confusion for voters and election officials alike,” the opinion stated.
The majority was joined by Circuit Judge Mark Bennett, appointed by Trump, and Circuit Judge Gabriel Sanchez, appointed by former Democratic president Joe Biden. Circuit Judge Patrick Bumatay, also a Trump appointee, dissented.
The Justice Department filed its lawsuit in federal court in Los Angeles on October 15, asking a judge to order California to separate ballots received from people on its list and refrain from counting them until their citizenship had been verified. The department later filed an emergency motion with the 9th Circuit to expedite the case.
Justice Department officials said on October 19 that the list of more than 20,000 people included 28 who had been criminally charged with illegally voting. The administration did not specify how many people on the list had actually submitted mail-in ballots.
California, the most populous US state and a Democratic stronghold, challenged the request. It has 52 seats in the House of Representatives, more than any other state, and Democrats are seeking to regain control of the chamber in the midterms.
Trump has made California a focus of his immigration crackdown since returning to the White House, accusing the state of undermining public safety through policies that limit cooperation with federal immigration enforcement. He has also argued that the state’s immigration policies have facilitated voter fraud.
California has maintained that its safeguards against noncitizen voting are robust. In a court filing, lawyers for Secretary of State Shirley Weber said the Justice Department’s claims relied on “suspect data”.
“At best, this litigation is a reckless political stunt,” the lawyers said in an October 20 filing. “At worst, it threatens to disenfranchise thousands of Californians this election.”
The Washington request is the latest in the administration’s efforts to identify suspected noncitizen voters, even though available evidence indicates that such voting is exceedingly rare.
In a court filing, Los Angeles County Assistant Registrar-Recorder Monica Flores said her staff reviewed a sample of 200 records from the administration’s list. The sample included cancelled or inactive registrations, people with no voting history and voters who appeared to have been born in the United States.
The Justice Department told Washington that it expected to send the state another list of people it suspects are noncitizens before Election Day. It also acknowledged that some people suspected of registering without citizenship may since have become naturalised US citizens.
Investigations in other states have also found fewer cases than the administration alleged. In Nevada, the administration identified 1,500 potential noncitizen voters on the rolls, but a subsequent investigation found none.
In Maricopa County, which includes Phoenix, the county recorder announced that 207 people on the rolls were possible noncitizens. The Republican county attorney later determined that the actual number was eight.
A Reuters investigation published in July found 129 cases in which noncitizens had been federally charged with illegally voting. Many appeared to involve voter confusion or administrative errors rather than intentional fraud.
Voting rights activists have warned that the administration’s methods for scrutinising voter lists could wrongly flag naturalised US citizens for removal from the rolls.
The Justice Department has told election officials in all 50 states they could face criminal prosecution if they knowingly allowed noncitizens to remain on voter rolls or cast ballots. It has sued 30 states and Washington, DC, over their refusal to provide complete voter rolls containing sensitive personal data, but has lost 26 of those cases without winning one.
(With agency inputs from AP via PTI & Reuters)