Judges Block DOJ Noncitizen-Voter Demands in Washington State and D.C.

Two federal judges have now restrained the Justice Department's push to have states sideline ballots from voters it flags as possible noncitizens, with U.S. District Judge Jamal Whitehead issuing a 14-day order in Washington state on Thursday, two days after Election Day.

Whitehead's order bars DOJ and DHS from demanding that Washington officials remove registered voters from the rolls, refuse them ballots, or segregate and withhold their votes. It also bars threats of prosecution against election workers who decline. It does not stop federal officials from investigating unlawful voting, sharing information, or asking for voluntary cooperation, Democracy Docket reported.

The dispute began Oct. 26, when federal prosecutors Pete Serrano and Neil Floyd sent Secretary of State Steve Hobbs a list of roughly 400 registered voters they suspected of being noncitizens. State officials said at least 62 of them had not been sent ballots because their registrations were canceled, inactive or unlocatable, and others had already proved citizenship.

The Justice Department argued it had only requested cooperation. Whitehead wrote: "On this record, Defendants did not ask." He added that "a threat of prosecution made for that purpose is not legal advice."

In Washington, D.C., days before the election, U.S. District Judge Tanya Chutkan temporarily barred DOJ and DHS from sending states lists of voters they say may not be citizens, and from asking officials to set those ballots aside until citizenship is proven, Reuters reported. She said the data may not be reliable. The suit alleged violations of the Privacy Act of 1974.

The picture across courts is not one-sided. A 9th U.S. Circuit panel cleared the government to threaten state and local officials with prosecution if they did not comply, per Reuters, though Chutkan is not bound by that ruling. Courts in California rejected a similar DOJ effort, and the Supreme Court declined to intervene on Nov. 2, according to Democracy Docket.

Noncitizen voting is already illegal, and the administration's position is that enforcing that ban is not a reviewable "policy." Reuters notes that available evidence shows noncitizen voting is exceedingly rare. Whitehead set a hearing on a longer-lasting injunction for Nov. 18, and the administration has asked to delay the ruling pending appeal — a request he denied.