Los Angeles — A federal judge on Thursday appointed a special master to evaluate claims by the Trump administration that California has some 20,000 noncitizens on its voter rolls, less than 24 hours after he rejected the Justice Department's demand that California sequester the ballots until citizenship can be verified.
U.S. District Judge David O. Carter did not specify the exact scope of special master Daniel B. Garrie's responsibilities, but said he would be tasked with “developing the factual record” for the court.
In a Tuesday court hearing, Carter had said he wanted to vet the federal government's list of over 20,000 alleged noncitizen voters since there has been extensive debate over its reliability and both sides have agreed that it includes an unspecified number of citizens.
Carter also said at the hearing that a special master could investigate California’s claims that it cannot logistically separate the ballots in time for the county election certification deadline on Dec. 3. The federal government has contested that assertion.
It is not clear what would happen if a special master did find a substantial number of noncitizen voters on the federal government’s list or whether it would affect the certification of California’s election results. The 20,000 people on the DOJ’s list constitute only a small fraction of California’s 23 million voters.
Special master appointed amidst Trump administration appeal to higher court
Meanwhile, the Trump administration asked a federal appeals court to quickly weigh in on whether it can temporarily prevent California from counting the disputed ballots. It wants the state to set them aside and only count them if a voter’s citizenship can be verified.
The Justice Department said in a late Wednesday filing that it's essential the 9th Circuit Court of Appeals issue a ruling as soon as possible due to “irreversible ballot processing occurring on an ongoing basis.”
The appeal came just hours after Carter issued a blistering order against the department's last-minute effort to compel California to segregate the ballots from its vote count.
The department says it believes those ballots were sent to people who are registered to vote even though they are not U.S. citizens. Early voting has been underway in the state for weeks and millions of people have already cast ballots.
Trump blasts judge's decision and says California's elections are ‘extremely corrupt’
Carter's decision was the latest legal setback for President Donald Trump in his efforts to expand federal control over state-run elections in the midterms that will decide control of Congress for the rest of his term. The Justice Department has made similar demands in other states including Washington. Noncitizen voting has been a central focus of Trump's political messaging for years, although available data indicates it is exceedingly rare.
Trump blasted Carter's ruling against the federal government on Thursday morning before heading to a campaign rally in South Carolina.
“California is very corrupt. The elections are extremely corrupt. The judge should not have done that but we’ll appeal that, of course," he told reporters. Trump added without evidence that there are “hundreds of thousands” and then amended it to “millions, in my opinion” of “bad ballots” in California.
Carter, an appointee of Democratic President Bill Clinton, argued that the Justice Department's demands were a clear violation of the National Voter Registration Act, which prohibits changes to voter rolls or election procedure within 90 days of an election.
A number of US citizens were included in the Justice Department's list of names
Carter also questioned the reliability of the department's list of names, since both sides agree that an unspecified number of citizens were inadvertently included. He argued that separating the ballots at this point would risk disenfranchising citizens and “wreak havoc” on the election certification process.
Over 500,000 votes have already been processed in Los Angeles County alone, according to court filings. The system also protects voter privacy: Once a vote is processed, it cannot be traced back to the person who cast it.
Carter is to rule on the government’s renewed request for a preliminary injunction, which would bar the state from counting the ballots until the litigation is resolved. He said he will do so after a Nov. 13 evidentiary hearing with input from the special master.
He said that if the federal government suspected noncitizens were voting, it could continue to prosecute those cases criminally. Federal authorities have charged over two dozen foreign nationals in California as part of a statewide sweep targeting people officials allege have illegally registered or voted in U.S. elections.
Appeals panel judges have said they wouldn't support setting aside ballots this close to midterms
The Justice Department has argued that it is in the government's interest to prevent fraudulent voting before it happens. Federal prosecutors also have said voters won't be disenfranchised by delaying the tabulation of their ballots while their citizenship is checked — an assertion disputed by county election officials.
The appeal will be the second time that the 9th Circuit Court of Appeals will consider the case.
The first time was just last week when the Justice Department argued before an appeals court panel that a fast ruling on its request was needed to stop any counting of the ballots.
Although the panel ruled it was premature for an appeals court to get involved before a lower-court ruling, two of the three judges wrote separate concurrences making it clear they wouldn’t support setting aside ballots at this late date. They questioned the accuracy of the federal government’s list of alleged noncitizen voters and argued that to set aside votes risks disenfranchising citizens.
One judge dissented, arguing that federal law bars noncitizens from voting and compels California to vet the potentially illegal ballots before they are counted. The failure to do so, he wrote, would cause irreparable harm to the election.
It's not clear whether the case will appear before a new panel of judges or the same three that reviewed the case last time.