Judge weighs outside reviewer for California voter list case

A federal judge said Tuesday he is considering appointing a special master to review the Trump administration's claim that California's voter rolls include about 20,000 noncitizens, and to determine whether counties could separate ballots cast by ineligible voters. U.S. District Judge David O. Carter said he would not issue an order until Wednesday.

Voting has been underway for weeks in California's midterm election, which concludes next Tuesday. The Justice Department sued California election officials in mid-October, saying they missed a 48-hour deadline to review a list of 20,000 people the government alleges are likely noncitizens on the state's voter rolls. The 20,000 names represent a small portion of California's 23 million voters.

Carter said he could not decide the matter quickly without an independent reviewer to weigh both sides' claims, adding that the work could be completed before California's Dec. 11 certification deadline. He also raised concerns about changing election procedure while voting is underway. The judge questioned why the federal government filed suit rather than pursuing criminal cases, referencing the October arrest of 28 people across California accused of illegally registering to vote. "You got a remedy for goodness sakes: go out and indict," Carter said from the bench. He also said threats to state and county election employees should cease immediately.

First Assistant U.S. Attorney Bill Essayli told the court the government was not asking to cancel any ballots. "We want to stop the illegal voting," Essayli said. "We don't want to chase it later." He said testimony would explain how the list of 20,000 names was put together. "The case rises and falls on the credibility" of the flagged names, Essayli said, arguing the state must investigate before counting those ballots.

California officials have said completed mail ballots are separated from envelopes containing voter identification, which would make it impossible to pull back ballots already submitted. More than 3 million ballots have been returned. Lawyers for California and Los Angeles County said the federal government has not explained how or when it obtained the voter file, and they questioned its use of a private, third-party service to verify Social Security numbers. M. Patrick Moore, a lawyer for the Los Angeles County registrar's office, said the county would give federal courts a record if a noncitizen votes. "If an individual who is a noncitizen votes, there will be record of that, and the county will provide that record," Moore said.

Los Angeles County officials reviewed a small sample of names from the federal list and found some were in fact citizens. A federal agent who led the investigation, which used roughly 800 federal employees checking names by hand, said in an affidavit that the county's findings were false. The filing acknowledged that some citizen names could have been included in error.