California Ballot Ruling: Judge Rejects DOJ Ballot Hold

In a California ballot ruling, a federal judge refused to make California hold back mail ballots from about 20,000 voters the Justice Department calls likely noncitizens, ruling that a criminal law against noncitizen voting does not give Washington control over how a state counts votes.

The California ballot ruling came Wednesday evening, Oct. 28, when U.S. District Judge David O. Carter denied the Justice Department’s request for a temporary restraining order that would have forced the state to set aside mail ballots cast by people on a federal list of suspected noncitizens until their citizenship was checked. Every name on that list was matched to immigration records, so the people affected are green card holders, naturalized citizens and others who have passed through the immigration system. Their ballots will be processed normally for the Nov. 3 election unless a higher court intervenes. The department filed a notice of appeal to the Ninth Circuit the same evening.

“This request violates longstanding constitutional principles mandating that states have control over their elections,” Carter wrote in the 26-page order in United States v. California, No. 2:26-cv-12025 (C.D. Cal.). He added a line that Reuters, NPR and the Associated Press all quoted: “Once a vote is segregated, lasting harm has occurred.”

Why the California ballot ruling turned on a misdemeanor statute

Noncitizen voting in federal elections is barred by both federal law and California’s constitution, so the fight was over who acts on a suspicion, and how. The department relied on 18 U.S.C. 611, which makes noncitizen voting in federal elections a crime, arguing that California’s ballot procedures obstructed it and were preempted. Carter found the government likely lacked both standing and a right to sue on that theory. He saw no conflict to preempt, since both laws forbid the same thing, and called Section 611 “a federal misdemeanor statute that sets forth criminal punishments for non-citizens who vote illegally,” a rule about individual conduct rather than election procedure. Under the Elections Clause, those procedures belong to the states unless Congress says otherwise, and “Congress knows how to displace state election procedures with federal law,” he wrote.

Carter pointed the government toward prosecution, the tool Section 611 actually provides, NPR and CBS News reported. The department has been using it; its Oct. 26 announcement listed 48 people charged, 47 of them green card holders. A prosecution must prove a specific person voted unlawfully; a ballot hold would have imposed the consequence first.

The government called the request modest. “Segregating a ballot does not prevent it from being counted later,” Bill Essayli, the First Assistant U.S. Attorney in Los Angeles, told the court, according to AP. Carter’s order countered that “never before in American history has the federal government, on the eve of an election, sought to coerce a state” this way.

How the list was built, and what the samples show

According to declarations described in the ruling, Homeland Security Investigations bought a California voter file, and USCIS’s fraud unit enhanced it with third-party data and matched names to immigration records of someone “that may be the same individual.” A USCIS official acknowledged the data “may be incomplete, outdated, or mismatched,” so matches were scored, checked against State Department and Social Security records and manually reviewed. The list of roughly 20,000 was delivered Oct. 13.

Immigration files record status on a given date, so a green card holder who later took the oath can still look like a noncitizen. Los Angeles County’s review, as summarized in the order, found that 7,035 of the 20,000-plus records carried county addresses. In a 200-record sample, 42.9 percent of registrations were already canceled, 4.6 percent were inactive and 42.4 percent were active, and 71.2 percent of the people had never voted. USCIS official Nicolas Bartell said in a declaration that the agency’s own review of those 200 found none born in the United States, while acknowledging four “might have a claim to U.S. citizenship,” NPR reported. The order also notes, citing news reports, that a Nevada list shrank from 15,903 names to 185 “confirmed” noncitizens, all of whom proved to be citizens.

The appeal now goes to a Ninth Circuit that declined to act on Oct. 26 because the government had appealed before Carter ruled. With more than 3.7 million Californians already voted by Wednesday, according to AP, the open question is whether any appellate court will order a change to a count already underway. Federal courts are traditionally reluctant to alter election rules at the last minute, and here that caution cuts against the government. NPR reported the dispute could reach the Supreme Court. The list itself stays in federal hands, and similar federal data are at issue in the lawsuit over the USCIS Unlawful Voter Initiative. For people on it, the risk shifts from a held ballot to investigation and prosecution, where the government carries the burden of proof.

This article is for general information and is not legal advice.

Sources

Vasanth Vaidyanathan, Esq.

Administrator

Vasanth Vaidyanathan is an immigration attorney with over 20 years of experience focused exclusively on U.S. immigration and nationality law. He holds a LL.M. from California Western School of Law, San Deigo and advises individuals and businesses on employment and family-based immigration matters, including H-1B, PERM, EB categories, and adjustment of status. He has also been a featured speaker at immigration seminars across the U.S. To reach Vasanth visit: https://www.vnathan.com/

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