Judge presses DOJ attorney over ‘unreliable’ voter list

The judge is expected to rule Monday on a Justice Department request to stay an existing temporary restraining order in the case.SAN FRANCISCO (CN) — A federal judge appeared skeptical Monday of the U.S. Justice Department’s arguments about letters it sent to election workers that the SEIU deemed threatening.The Service Employees International Union, AFL-CIO and other groups sued the Justice Department on Thursday over letters election offices received. They said the letters threaten criminal prosecution if workers process the ballots of people on a list of suspected noncitizens.U.S. District Judge Trina Thompson blocked the department on Friday from threatening, intimidating or coercing local election officials nationwide from processing ballots of registered voters the government suspects belong to noncitizens. The temporary restraining order expires at 5 p.m. Nov. 13.Her ruling set the stage for Monday’s hearing on the Justice Department’s request for the judge to pause the order pending an appeal or alternatively dissolve it. The Joe Biden appointee indicated a decision, which could include a modification of its nationwide effect, would come by day’s end. A written ruling will follow.“The government is allowed to conduct investigations and to actually prosecute,” Assistant U.S. Attorney Kenneth Kao said.Attorney Danielle Leonard argued the Justice Department and Department of Homeland Security concocted lists then used them to threaten election officials. She called it a violation of the Administrative Procedure Act, as the letters exceeded the agencies’ authority and were arbitrary and capricious.The list of purported noncitizens is at the center of a handful of legal challenges. Last week, a Ninth Circuit panel rejected the Trump administration’s attempt to require California to sequester as many as 20,000 ballots.On Monday, Leonard argued the federal government couldn’t obtain an unredacted California voter roll from the state, leading it to create its own list. That list came from redacted information someone bought from the state and gave to the federal government.However, it’s unknown when the list was procured. Voter rolls constantly change, Leonard noted, and the federal government won’t reveal when it received the data or whether it’s been altered.“It is completely unreliable,” Leonard added.Kao argued that’s why his office wanted to verify the list before Election Day. California refused to help.“Would you agree there’s a high error rate?” Thompson asked him.“I think that’s a fair statement,” Kao said, pointing to Justice Department attempts to work with California on the list’s verification.Both sides also sparred on whether the plaintiffs have standing to bring the suit.Kao said the workers who filed the legal complaint never personally received a letter. His department sent letters to county election officials, not election workers who are members of unions like SEIU.Also representing the plaintiffs, attorney Stacey Leyton said Kao wanted to make a technical distinction about letter recipients. But the threats of prosecution in those letters fall on many election workers.“The defendants broadly broadcast these threats,” she said, adding: “It’s a fear that any reasonable person would have.”Leyton argued the judge didn’t need to decide the threats stopped someone from processing ballots. Instead, she only needed to determine if someone was reasonably intimidated.Thompson questioned why the government didn’t start its investigation until after California certified its election. Kao said the government wants to ensure elections are comprised of valid voters.“But why is it imperative to do it now, when we’re about to have an election tomorrow?” she added.Summarizing her thoughts, Thompson said she heard election workers are relying on a flawed list and could face prosecution if they process certain votes based on it. She questioned how an eligible voter might avoid disenfranchisement under this procedure, adding the government could investigate once California had certified the vote.Thompson said Article I and Article III of the U.S. Constitution check this type of overreach. She indicated copies of the Constitution rested on Kao’s lectern.“It’s pretty clear,” she added.Subscribe to our free newslettersOur weekly newsletter Closing Arguments offers the latest about ongoing trials, major litigation and rulings in courthouses around the U.S. and the world, while the monthly Under the Lights dishes the legal dirt from Hollywood, sports, Big Tech and the arts.Additional Reads