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The Justice Department has given up on its own lawsuit over 20,000 California ballots. On Friday, federal prosecutors moved to voluntarily dismiss the case in which they had sought to stop the state from counting ballots they alleged were cast by noncitizens — four days after the Supreme Court refused to intervene, and days after Republicans suffered sweeping losses in the midterm elections. The case was at the forefront of the Trump administration's effort to assert control over state-run elections. It ended, in the end, with the government asking the court to let it walk away.
How the case collapsed
The department sued California on October 15, demanding that the state set aside about 20,000 mail ballots from people it identified as suspected noncitizens until their immigration status could be verified. It lost at every step. U.S. District Judge David O. Carter ruled the request was likely unconstitutional — the Constitution gives states and Congress power over elections, not the executive — and likely violated federal law barring sweeping vetting of voter rolls in the immediate run-up to an election. A three-judge panel of the 9th Circuit Court of Appeals, two of them Trump appointees, agreed by 2–1. On Monday, the eve of Election Day, the Supreme Court denied the department's emergency appeal in a one-line, unsigned order, with no noted dissents.
In Friday's two-page filing, Assistant U.S. Attorney Julie Hamill wrote that the United States had "exhausted its appeals to obtain timely relief all the way to Supreme Court" — and that by the time of a hearing scheduled for November 13, California would have already "commingled the challenged ballots with lawful ones". The relief the government sought, the motion said, "is no longer available". The department's top prosecutor in Los Angeles, Bill Essayli, had previously acknowledged in court that the lawsuit would become irrelevant after Election Day, because the ballots allegedly cast by noncitizens could no longer be isolated.
What it does — and does not — settle
The dismissal ends the federal challenge to the counting of those ballots, but it does not establish that every ballot was valid or invalid — the accuracy of the government's list was never tested in court. The November 13 hearing, where a special master appointed by Judge Carter was to evaluate the list and its methodology with expert witnesses, will now not happen. California had processed roughly 9 million ballots as of early Friday, with nearly 5 million still left to be counted.
Nor is the underlying fight over. The Justice Department remains in litigation with immigrant and voting rights groups over its use of the list of suspected noncitizens, and the list is still being used by federal prosecutors in California to target individual voters for criminal prosecution. The department has sued at least 30 states that refused to turn over voter data, losing almost all of those cases. Judge Carter, in a forceful opinion, described the California request as part of "a broad, ongoing pattern of attempted election interference". The lawsuit is over. The list, and the strategy behind it, are not.
Sources: Los Angeles Times (via DNYUZ) and MyNewsLA.