Feds can’t force WA to set aside alleged noncitizen ballots, judge rules

The Trump administration can’t force Washington state election officials to set aside ballots from 400-plus voters alleged to be noncitizens, a federal judge in Seattle ruled Thursday. 

The temporary court order stymies a longshot bid from the U.S. Department of Justice to leave ballots from those voters uncounted while authorities investigated their eligibility, a step that the state refused. 

The ruling is unsurprising in light of the U.S. Supreme Court rejecting a similar push in California, which was in line with a federal appeals court decision that covers Washington and other western states.

The fast-moving saga kicked off just last week, when federal prosecutors from western and eastern Washington, Charles Neil Floyd and Pete Serrano, alleged Washington’s voter rolls contained at least 405 noncitizens who’d voted upward of 1,500 times in elections dating back decades. Floyd and Serrano pushed the state to not count those ballots, and said the preliminary list was just the “tip of the iceberg.”

This was just over a week out from Election Day, which saw Democrats make massive gains nationally. 

Secretary of State Steve Hobbs, a Democrat, countered that the federal list included U.S. citizens and lacked evidence to prove the voters’ status. He called the letter he received from Floyd and Serrano a “dumpster fire disguised as a legal document.” 

“If the DOJ has identified noncitizen voters on our voter roll, they should provide us with accurate and complete information so we can investigate according to state and federal law,” Hobbs said in a statement Thursday evening. “Eligible voters should not be disenfranchised because of unsupported allegations.”

Hobbs has said the state doesn’t have a way to confirm if noncitizens are on the state’s voter rolls, but they would be caught if they voted.

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Late Friday, immigrant advocacy and labor groups sued the Trump administration to stop the feds from ordering the state to set aside the ballots. 

The legal question is whether Floyd and Serrano were asking or ordering Hobbs to not count ballots from the voters in question. It’s unclear how many of them voted in this year’s midterms. In separate recent decisions, the 9th U.S. Circuit Court of Appeals, ruled the feds could ask to set ballots aside, but couldn’t compel election officials to do so.

U.S. District Court Judge Jamal Whitehead decided that, in this case, federal authorities were not asking. 

His order doesn’t stop the feds from prosecuting anyone who votes unlawfully or from asking Washington to set the ballots aside. 

The decision from Whitehead, who was appointed by Joe Biden, lasts two weeks. Counties have to certify election results by Nov. 24. Hobbs will then certify by Dec. 3. Vote counting under Washington’s mail-in voting system is ongoing.

“For the next two weeks, while Washington’s counties count and certify the ballots already cast, DOJ may not demand that election officials set aside a registered voter’s ballot because the voter’s name appears on a federal list and may not threaten those officials with prosecution for counting votes as state law requires,” Whitehead wrote in his order. “Voters who followed the rules should not lose their votes to a list that even its authors admit may include citizens.”

A court hearing on an injunction to go beyond the two-week period is set for Nov. 18.

Justice Department spokesperson Kiersten Pels said “we are reviewing the court’s order and evaluating next steps.”

“A temporary restraining order is not a final ruling on the merits, and the Department will continue to defend its authority to work with states to ensure that voter rolls comply with federal law,” Pels said in an email Friday.

The plaintiffs, OneAmerica Votes, the Latino Community Fund of Washington State and the United Food and Commercial Workers Union, couldn’t be reached for comment. 

It’s yet another legal loss for the Trump administration in its efforts to assert power over state-run elections in Washington. The federal government has previously tried and failed in court to get private information from the state’s voter rolls and restrict mail-in voting in states like Washington.