By Michael Kunzelman
A federal judge on Thursday ordered the Trump administration to identify all states where it has pressured officials to comply with its efforts to prevent non-U.S. citizens from voting in the midterm election, inquiries that Democrats have challenged as an illegal power grab.
Chief Judge James Boasberg said he intends to rule by Monday — the eve of Election Day — on a request by Democratic Party leaders to block President Donald Trump’s administration from attempting to undermine state election procedures next week.
But the judge noted that the administration can “moot this process at any time” by filing a notice indicating that it will not engage in the election-related conduct the Democratic plaintiffs sued to challenge.
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Meanwhile, the judge and plaintiffs want to know if election officials in any states besides California and Washington have received letters from the Justice Department threatening them with criminal prosecution if they knowingly retain noncitizens on their statewide voter registration lists.
Democratic Party leaders, including Senate Minority Leader Chuck Schumer and House Minority Leader Hakeem Jeffries, sued on Oct. 20 in U.S. district court to prevent Trump from interfering with states’ administration of the election. The plaintiffs asked Boasberg for an order that would bar the Republican president’s administration from removing legally registered voters from statewide voter registration lists or preventing states from issuing ballots to registered voters or counting ballots.
The lawsuit cites the administration’s recent actions in California, where the Justice Department sued to block state election officials from counting mail ballots cast by people whom the federal government has identified as “likely” noncitizens until their immigration status can be confirmed. A federal judge on Wednesday sided with California in the case, a ruling the Justice Department immediately appealed.
Administration attorneys claim the government has found evidence that people who aren’t U.S. citizens have or will illegally cast midterm votes. Evidence from the states and the Justice Department’s own investigations has shown that voting by noncitizens is extremely rare.
The administration says the plaintiffs’ claims are overly broad, vague and would prevent it from carrying out its constitutional duty to enforce federal laws.
During the hearing, Boasberg expressed doubt that the Democratic plaintiffs have established they have the legal standing necessary to bring their lawsuit’s claims. The judge also noted that the administration’s letters don’t require states to do anything unless the federal government obtains a court order to compel their compliance.
“That’s up to them. That’s their own choice,” Justice Department attorney Christian Dibblee said. “It just notifies them of a potential violation of federal law.”
Boasberg ordered the administration to turn over its list of Justice Department letter recipients by Friday.
Plaintiffs’ lawyer Uzoma Nkwonta urged the judge to stop the government’s “unprecedented campaign” to interfere with states’ duties to administer elections.
“I don’t doubt you have legitimate concerns,” the judge said. “The harder question for me is your standing to do it.”
Boasberg, who was nominated by Democratic President Barack Obama, has been vilified by the White House for rulings against the Trump administration. Trump and his allies called for Boasberg’s impeachment last year after the judge blocked him from using the 18th-century Alien Enemies Act to deport planeloads of Venezuelan migrants to El Salvador.
The lawsuit’s other plaintiffs are the Democratic Senatorial Campaign Committee, the Democratic Congressional Campaign Committee and the Democratic Governors Association. Its named defendants are Trump, the Justice Department, Attorney General Todd Blanche, the Department of Homeland Security and its secretary, Markwayne Mullin.
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