Judge Orders DOJ to Name the States It Pressed to Set Aside Noncitizen Ballots. If the Letters Are Sound, Publish the List.
In a suit brought by Schumer, Jeffries and Democratic committees, a federal judge ordered DOJ to disclose which states it asked to set aside ballots of alleged noncitizens.
The facts come first below. My opinion follows in the section marked as opinion.
A federal judge in Washington on Thursday ordered the Justice Department to disclose which states, beyond California and Washington, it has sent letters since July demanding that they set aside the ballots of alleged noncitizens, Roll Call reported. Chief Judge James Boasberg of the U.S. District Court for the District of Columbia left open the possibility of barring the government from sending more such letters, with a ruling by Monday.
The case was brought by Senate Minority Leader Charles Schumer, House Minority Leader Hakeem Jeffries, the Nevada Democratic Party and national Democratic campaign committees. They allege the administration has sought to insert itself into state election procedures by claiming states allowed noncitizens to vote, according to Roll Call.
What the judge ordered
Boasberg ordered the department to give the plaintiffs, by noon Friday, a list of all states to which the Justice Department and the Department of Homeland Security have sent letters. He did not immediately rule on the request to block further letters, and at times he appeared skeptical of whether the plaintiffs could bring the challenge and whether their claims were speculative, MS NOW reported. The plaintiffs may file another brief by the end of Saturday, and the judge said he would rule by Nov. 2, one day before the election.
He also gave the government a way out. "You at any point can moot this, moot it all by saying we don't intend to do this before the election, but if you don't, I'll issue an opinion by Monday," Boasberg said, as quoted by Roll Call.
The arguments
Uzoma Nkem Nkwonta, a lawyer for the Democrats, argued the letters were effectively an attempt to force states to set aside ballots. "The government cannot use threats of prosecution to coerce officials to do something the government could not do on its own," he said. Christian Dibblee, the government's lawyer, answered, "There is nothing about the actual transmission of the letter that forces the recipient to do anything. It just notifies them of potential violations of federal law," Roll Call reported.
Boasberg pushed back on that point. "I would have thought, 'wow, we better act here or we're going to be in trouble' as opposed to the idea that 'it's nice to get this letter, but there's nothing we need to do about it,'" he said, according to MS NOW.
In its court filing, the government wrote, "Defendants have identified evidence that non-citizens may have cast, or may be imminently casting, votes in the upcoming federal election in violation of an explicit federal law that prohibits such votes." The plaintiffs wrote that "the Executive Branch enjoys zero authority to superintend state voter list maintenance," MS NOW reported.
Washington Secretary of State Steve Hobbs on Thursday published a response to the department's letter to his state, noting that its list of names included U.S. citizens, according to Roll Call.
Opinion: If the letters are sound, publish the list
I want noncitizens kept out of our elections as much as anyone. It is against federal law, and the government has every right to say so and to prosecute those who break it. Nothing in this hearing changes that.
But the judge asked for something simple: tell us which states got these letters. That should not be a hard request for an administration confident in its work. If the Justice Department has evidence, the public should see where it has been sent and why. A government that says its letters merely notify a state of a possible violation should have no trouble naming the states it notified.
The record so far gives reason for caution. In California, a federal judge this week found the government's process for flagging noncitizens not credible, as we reported in Judge Denies DOJ Bid to Set Aside 20,000 California Ballots. Washington's top election official says the list sent to him included citizens. Those are the kinds of errors that cost a lawful voter his voice.
The apostle Paul handled money for the churches with this rule: "Providing for honest things, not only in the sight of the Lord, but also in the sight of men." Public trust works the same way. It is not enough to be right in private. Those in authority should act in the open, where citizens can check the work.
The judge was also fair to the government. He questioned whether the Democrats could even bring this case, and he has not blocked anything yet. Conservatives should welcome that kind of care, whichever party is in the White House. The best answer the administration can give is to hand over the list, stand behind its evidence, and let the courts and the voters judge it.
