The U.S. Department of Justice on Friday moved to dismiss its own lawsuit that sought to stop California from counting roughly 20,000 ballots it alleged were cast by noncitizens until each voter's immigration status could be verified.
The request to dismiss the case comes days after Republicans' significant losses in the midterm elections, and about a week before a scheduled hearing at which a special master was to evaluate the accuracy of the federal government's list of flagged voters. California officials have said the list is out of date and includes legitimate voters — a view the federal judge presiding over the case echoed in a blistering order denying the government's request for emergency relief.
In its filing on Friday, the department acknowledged that the relief it sought was no longer possible because, by the time of the November 13 hearing, California election officials would already have mixed the challenged ballots with lawful ones.
"The relief the United States sought and needed is no longer available — rendering voluntary dismissal necessary," the motion said.
The lawsuit, filed on October 15, sought to compel California and Los Angeles County election officials to separate mail ballots belonging to roughly 20,000 registered voters whom the federal government identified as likely noncitizens. U.S. District Judge David O. Carter denied the administration's request for emergency relief, and the 9th U.S. Circuit Court of Appeals subsequently rejected its attempt to force California officials to segregate the ballots. On November 2, one day before Election Day, the U.S. Supreme Court also declined to intervene.
Bill Essayli, the top federal prosecutor in Los Angeles, had previously said the lawsuit would be irrelevant after Election Day because there would be no way to sequester the ballots allegedly belonging to noncitizens. The case was at the forefront of the Trump administration's effort to assert control over state-run elections, which the president has said are rife with illegal voting without providing evidence.
California officials have said a preliminary review of the federal list undercut its accuracy: Los Angeles County officials said a sample check of 200 names found nearly 40 percent indicated U.S. birth, and more than 70 percent had no voting history.
The state had processed roughly 9 million ballots as of early Friday, with nearly 5 million still left to be counted, according to state election officials. The department dismissed the case under a federal procedural rule that allows plaintiffs to voluntarily withdraw a lawsuit before defendants file an answer or a motion for summary judgment, so the case ends without a final ruling on the merits.
