Judge Bars DOJ From Forcing Washington State to Set Aside Suspected Noncitizen Ballots

A federal judge in Seattle has temporarily barred the Justice Department from pressuring Washington state to set aside ballots cast by voters the federal government suspects are noncitizens, delivering an early court defeat for the administration's post-election push on voter rolls.

U.S. District Judge Jamal Whitehead issued a 14-day temporary restraining order. It bars the Justice Department and the Department of Homeland Security from demanding that election officials set aside ballots from voters on a federal list of suspected noncitizens, and from threatening them with prosecution for counting those ballots.

The dispute began when two federal prosecutors, Pete Serrano and Neil Floyd, sent Washington Secretary of State Steve Hobbs a list of roughly 400 registered voters the Justice Department suspected of being noncitizens. The state refused to set those ballots aside.

Whitehead drew a line between asking and compelling. The government, he wrote, "may ask a state to set ballots aside, but it may not compel one to do so." He concluded that on the record before him, the defendants "did not ask."

The order is narrow. It does not stop federal authorities from prosecuting anyone who votes unlawfully, and it does not prevent them from asking Washington to set the ballots aside. A Justice Department spokesperson said a temporary restraining order "is not a final ruling on the merits."

The case moves quickly. The government has until Nov. 12 to oppose a longer-lasting order, and Whitehead will hear arguments on Nov. 18. Washington counties must certify their results by Nov. 24, so the judge's eventual decision will land just before the state finalizes the count.

The ruling follows a similar loss for the administration in California, where federal courts rejected an attempt to force election officials to segregate the ballots of suspected noncitizens. Washington votes almost entirely by mail, which means ballots are already counted on a rolling basis and cannot easily be pulled aside after the fact. State officials have argued that federal prosecutors have no power to dictate how a state counts its votes.

The case is one of several fights over the federal government's role in running elections that have followed the midterms. Because the order lasts only two weeks, the key questions are still ahead: whether Whitehead extends it after the Nov. 18 hearing, and whether the Justice Department can show it actually asked, rather than ordered, Washington to segregate the ballots. For now, county election workers can keep counting the ballots without a federal demand or prosecution threat of the kind the order bars. Democracy Docket and Courthouse News also reported on the ruling.