The Justice Department on Friday asked to dismiss its own lawsuit, which sought to prevent California from counting about 20,000 ballots it claimed were cast by noncitizens until their immigration status could be confirmed.
The dismissal request came days after Republicans suffered major losses in the midterm elections and roughly a week before a hearing at which a special master was scheduled to assess the accuracy of the list. California officials have maintained that the list is outdated and contains eligible voters — a position echoed by the federal judge overseeing the case in a sharply worded order rejecting the federal government’s request.
The lawsuit was central to the Trump administration’s broader effort to assert greater control over state-run elections nationwide. President Trump has repeatedly claimed, without presenting evidence, that illegal voting is widespread.
On Monday, one day before Election Day, the Supreme Court turned down an emergency request from the Justice Department to force California to segregate mail-in ballots submitted by the approximately 20,000 people the department identified as suspected noncitizens.
The Supreme Court rejected the request in a brief, unsigned order.
The Justice Department is still involved in litigation with immigrant and voting-rights organizations over its use of the list of people it identifies as suspected noncitizens. In another contentious case filed at Mr. Trump’s direction before the election, the department sought to block the Democrat who won Alaska’s Senate race. That lawsuit was quickly dismissed by a federal judge. The administration has appealed, but it has not yet submitted a full brief to the Ninth Circuit Court of Appeals.
California had counted about 9 million ballots by early Friday, while nearly 5 million remained outstanding, according to state election officials. In its motion to dismiss, the Justice Department said that by the time of the scheduled hearing, California would have already irreversibly “commingled the challenged ballots with lawful ones.”
“The relief the United States sought and needed is no longer available—rendering voluntary dismissal necessary,” the motion stated.
ALSO READ: Foster Mom Charged in Murder of 10-Year-Old Found in Trunk
Bill Essayli, the leading federal prosecutor in Los Angeles, had previously acknowledged in court that the lawsuit would become moot after Election Day because the ballots allegedly cast by noncitizens could no longer be isolated. The case was filed in mid-October, after ballots had been mailed to all 23 million of California’s registered voters and hundreds of thousands had already been processed. Once processed, a ballot is fully anonymized.
When the lawsuit was filed, Essayli said its purpose was to “safeguard the integrity of the election so it doesn’t have an effect on the upcoming election.”
“We want to stop the illegal voting. We don’t want to chase it later,” he said outside the courthouse the week before the election.
The U.S. Attorney’s Office for the Central District of California directed questions to the Justice Department in Washington, D.C. The department did not respond to an emailed request for comment Friday evening.
California prosecutors have arrested more than 30 noncitizens in recent weeks on allegations that they illegally registered to vote. Some of those arrested were also accused of voting in earlier elections. In the week before the election, election clerks across California received subpoenas to testify before grand juries expected to convene in November. It remains unclear who, if anyone, faces criminal charges in those matters. The department generally does not subpoena people it considers targets of a criminal investigation to testify before a grand jury.
U.S. District Judge David O. Carter appointed the special master in late October, soon after allowing California to conduct the election as scheduled. Carter, who was appointed by former President Bill Clinton, wrote in a forceful ruling that separating ballots at such a late stage could disenfranchise eligible voters and warned that the move would “wreak havoc” on the midterm elections.
The special master was also expected to determine whether California election officials actually had a process in place to separate the ballots.
