Justice Department seeks to drop suit over 20,000 California ballots

The U.S. Department of Justice filed a motion on Friday to dismiss its own lawsuit seeking to halt the counting of approximately 20,000 California ballots. The federal government originally alleged these votes belonged to noncitizens and requested that they be set aside until immigration status could be verified. The dismissal request arrives days after Republicans suffered losses in the midterm elections and roughly one week before a scheduled hearing.

A special master was appointed to evaluate the accuracy of the disputed list at that upcoming hearing. California officials have long maintained the list is outdated and includes legitimate voters. Judge David O. Carter, a federal judge appointed by former President Bill Clinton, previously echoed that sentiment in an order denying the federal government's initial request. Carter warned that separating ballots at such a late stage risked disenfranchising citizens and would wreak havoc on the midterm elections.

The lawsuit was part of a wider effort by the Trump administration to assert control over state-run elections. President Donald Trump has described those elections as rife with illegal voting, though he has not provided specific evidence. The Department of Justice remains involved in other litigation with immigrant and voting rights groups regarding its use of the suspected noncitizen list. A separate suit filed in Alaska at Trump's direction to block a Democratic Senate victory was dismissed by a federal judge. The administration is appealing that ruling but has not yet filed a full brief at the 9th Circuit Court of Appeals.

State election officials reported that California processed roughly 9 million ballots as of early Friday. Nearly 5 million ballots remained to be counted at that time. The motion to dismiss argued that the state would have already mixed the challenged ballots with lawful ones by the time of the hearing. The filing stated that the relief sought by the United States is no longer available, making voluntary dismissal necessary.

Bill Essayli, the top federal prosecutor in Los Angeles, had argued in mid-October when the suit was filed that the case would become irrelevant after Election Day. He noted that once a ballot is processed, it is completely anonymized. Essayli said his goal was to safeguard the integrity of the election. He stated outside of court the week before the election that the office wanted to stop illegal voting rather than chase it later.

In recent weeks, California prosecutors arrested more than 30 noncitizens accused of illegally registering to vote. Some of those arrested also faced accusations of voting in previous elections. Elections clerks across the state received subpoenas to testify before grand juries scheduled to convene in November. It is unclear who is being criminally charged in those specific cases, though the department typically does not subpoena individuals it regards as targets of a criminal investigation.

The United States Attorney’s Office for the Central District of California directed questions to the Department of Justice in Washington, D.C. The department did not respond to an emailed request for comment on Friday evening. The special master appointed by Judge Carter in late October was also slated to consider whether California election officials had a mechanism in place to separate the ballots.