The Justice Department on Friday dropped its lawsuit seeking to force California to set aside mail ballots from about 20,000 people it called likely noncitizens, filing a notice of voluntary dismissal in federal court in Los Angeles.
It’s a massive admission of defeat that comes even as California continues to count ballots in major races.
In the notice, signed by Assistant U.S. Attorney Julie Hamill, DOJ said it had sought “targeted and modest relief” to segregate the ballots until state officials could confirm the voters’ citizenship. It argued that each legal vote offset by an illegal one is irreparable harm, and that it needed relief around Election Day on Nov. 3.
DOJ blamed the timing in part on the district court, saying Judge David O. Carter denied its emergency application and set a preliminary injunction hearing for Nov. 13, more than a week after the election. The government said it then exhausted its appeals, up to the Supreme Court, which denied its application for an injunction pending appeal on Nov. 2.
The department said that by the Nov. 13 hearing California will have already mixed the challenged ballots with lawful ones, leaving “no way” to separate them. As a result, it said, the relief it sought is no longer available and dismissal is necessary because there is no longer Article III jurisdiction. It cited Rule 41(a)(1)(A)(i), noting no answer or summary judgment motion had been filed.
DOJ said that, given the Supreme Court’s denial, it is “evaluating how to best ensure that American votes are protected,” including by preventing vote dilution by noncitizens.
Carter and the Ninth Circuit had earlier rejected DOJ’s requests.
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