Federal Judge Refuses to Stop California From Counting Ballots Flagged as Noncitizen

A US federal judge has refused a Justice Department request to temporarily stop California from counting mail ballots from a list of 20,000 people the government says are noncitizens. The ruling came six days before the country's midterm elections.

US District Judge David Carter issued the decision on Wednesday. In his written ruling, he said: "Never before 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."

Carter, who was appointed in 1998 by Democratic President Bill Clinton, found that the last-minute demand to exclude more than 20,000 ballots conflicted with "longstanding constitutional principles mandating that states have control over their elections". The Justice Department quickly appealed to the Ninth US Circuit Court of Appeals. It did not immediately reply to a request for comment from the Reuters news agency.

The department filed its lawsuit on October 15, a rare move to step into the voting process only weeks before Tuesday's election. Voters will decide which party controls Congress, along with their state and local representatives.

The ruling is the latest setback for President Donald Trump's push to widen the federal role in elections as his Republican Party tries to keep control of both houses of Congress. Reuters documented more than 100 subpoenas from the administration seeking records on tens of thousands of voters in at least 13 states, both Republican- and Democratic-leaning. Most were sent to state and local election officials in the past three months, though some date back to the start of the year. Many had not been reported before, showing a federal search for potential noncitizen voters that is broader than publicly known.

Noncitizens are barred from voting in US federal elections. Legal experts say the collected records could be used to challenge close midterm results, even though there is little evidence that noncitizen voting is widespread.

Also on Wednesday, Democracy Docket, a US platform that tracks election litigation, reported that the Justice Department's list "appears to have been created using a deeply flawed process" that could disenfranchise citizens outside California as well. According to the group, a government whistleblower said in a court filing that voters were being scrutinised across the country as part of the federal "Unlawful Voter Initiative" investigation. The whistleblower warned that "the current process is knowingly sweeping known US citizens in as potentially 'unlawful voters'".

California has said its safeguards against noncitizen voting are robust. The state argued that the Justice Department's claims rest on "suspect data" and that meeting its demands could cost eligible voters their right to vote. Democracy Docket reported that in Los Angeles County, one in four voters on the "noncitizen" list were born in the US.