Judge lets 20,000 mail-in votes count

Federal Judge David Carter allowed 20,000 mail-in ballots to remain in the California count, rejecting a last-minute request from the Trump administration to remove them from the tally. The ruling came on Wednesday, just as election officials processed votes ahead of the upcoming vote. Carter determined that the government's demand to isolate these specific ballots would disrupt the ongoing election process. He noted that allowing either party to create such chaos for political purposes violated established constitutional principles regarding state control over elections.

The Justice Department filed its lawsuit on October 15. The suit asked a court to order California to set aside vote-by-mail ballots from people the federal government identifies as likely noncitizens. The department claimed to have compiled a list of over 20,000 names of individuals it believes are not citizens. Attorney Christina McCall, representing the state, argued that the government's numbers were unreliable. She noted that in a July letter, the department had estimated 190,000 suspect voters but refused to share how it generated those lists. McCall told the court the allegations were vague and lacked evidence.

Carter questioned the credibility of the government's process in his written decision. He pointed to a similar case in Nevada where the Department of Homeland Security initially identified 15,903 registered voters as noncitizens. That number dropped to 6,218, then to 185 after a manual review. Nevada officials later confirmed all 185 individuals were citizens. Carter wrote that if the state had accepted the initial federal allegations, 185 citizens would have lost their right to vote. He stated the court would not deprive Californians of their fundamental rights based on what he called unfounded allegations.

Anne Bellows, another attorney for California, described the stakes as enormous. She argued the government was forcing the state to investigate the citizenship of tens of thousands of people without clear standards shortly before an election. Bellows called the approach a recipe for disenfranchisement. First Assistant U.S. Attorney Bill Essayli countered that the federal government was not telling California what to do, but rather what it could not do. He asserted that once the state is aware of potential noncitizens on its rolls, it must act rather than simply counting the votes.

Carter suggested the government use its existing prosecutorial power instead of halting the count. He asked Essayli if the department did not have the power of indictments. Carter referenced 28 recent indictments of individuals who voted illegally in California. He urged the attorneys to go out and indict those they believed committed crimes. Essayli criticized the ruling on Wednesday and stated an appeal is underway. He said the Solicitor General authorized an immediate appeal and that the department would seek an emergency order from the Ninth Circuit.

The Ninth Circuit Court of Appeals already weighed in on the case last week. The appeals court held an emergency hearing on Sunday and ruled against the administration 2-1 on Monday. The majority found it lacked jurisdiction because Carter had not yet issued a final ruling. Judge Mark Bennett wrote that the government's claimed emergency was partly self-constructed. He noted the United States had taken issue with California's voter rolls since July 16. Judge Gabriel Sanchez concurred, stating the government was asking a court to dictate to a state legislature on a matter within the state's traditional domain.

Patrick Bumatay, a Trump appointee, dissented from the appeals court decision. He wrote that the federal government should have received relief. Bumatay argued that federal law precludes California from mixing ballots likely cast by noncitizens with legitimate ballots. He believed this practice encourages and induces illegal voting. The Justice Department filed its notice of appeal on Wednesday. It will immediately seek an emergency order from the Ninth Circuit to stay Carter's ruling while the appeal is heard.