A hearing on President Donald Trump’s ballot demands drew an accusation that a Justice Department lawyer lied about his own voting, after he conceded the government’s voter list was error-prone.
Justice Department attorney Kenneth Kao told U.S. District Judge Trina Thompson on Monday that he had not needed to show his ID the last time he voted, then corrected the record and said he voted by mail this election, legal journalist Chris Geidner reported.
“This is wild,” Geidner noted as the hearing was underway.
Thompson, who sits in San Francisco, was hearing the department’s bid to pause her Friday order, which bars the administration from threatening election workers with prosecution over ballots cast by people it alleges are ineligible to vote.
That reversal is what drew the accusation that Kao lied.
“[He] improperly made himself a fact witness, lied in doing so, and then corrected the record because of the lie,” University of Kansas law professor Corey Rayburn Yung posted on Bluesky about Kao’s account of his voting.
A fact witness testifies about what they saw or did, a role lawyers arguing a case generally are not supposed to take on. Attorney Gabriel Malor, who listened to the hearing, described the reversal differently, writing that Kao “sorta walks that back a little uncertainly and suggests he voted by mail this election.”
“I hope you’re not on the list,” a lawyer for the plaintiffs quipped, Malor wrote.
Earlier in the hearing, Kao had conceded a problem with the list at the center of the case.
“I think that’s a fair statement,” Kao said after Thompson asked whether he agreed that “there is a high error rate” in the government’s list of suspected noncitizen voters.
“[Kao] is conceding a ridiculous number of issues. This is an utterly insane hearing,” Malor wrote on Bluesky.
“This is what you call game over,” New York University law professor Ryan Goodman posted on Bluesky, adding that the “DOJ admission will have reverberating effects in other cases.”
Kao’s answer puts a government admission about the list’s errors on the record as the Supreme Court weighs a request built on that same list.
Earlier Monday, Solicitor General D. John Sauer asked the justices to force California to set aside mail ballots from people on the list. His emergency application argued that U.S. District Judge David Carter “committed clear error in rejecting the United States’ factual contentions” when Carter denied the same request last week.
Kao argued the errors were the reason the government had asked county election officials for help, ABC7 reporter Monica Madden reported. The department maintains its investigation targets knowing violations of federal law, not workers doing their jobs.
Kao’s concession pointed to the same problem Carter had found. Carter ruled last week that DOJ offered no error rates for its list, and the 9th U.S. Circuit Court of Appeals on Friday let stand his finding that the process behind the list was not credible, the appeals court’s order shows.
Kao also told Thompson that DOJ had asked the Supreme Court for full review of the California case, Geidner reported. The department had instead filed an emergency request for an order while its appeal plays out, Sauer’s application shows.
Monday’s hearing is one of several court fights over the same list, each over a different use the administration has made of it. In DOJ’s own lawsuit, Carter refused to order the ballots set aside, the 9th Circuit agreed and Sauer’s request is now with the justices, court records show.
Thompson’s case, a plaintiffs’ lawyer told her, challenges threats against election workers rather than the list itself, Geidner reported.
Separately, U.S. District Judge James Boasberg on Monday barred the Department of Homeland Security from demanding that California officials segregate ballots based on the lists, Democracy Docket reported.
Thompson said she would decide by the end of Monday whether to change her order, which runs through Nov. 16. DOJ asked her to limit it to Northern California, Madden reported, a change that would leave election workers elsewhere outside its protection.
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