Federal law prohibits states from systematically removing voters from voting rolls during what is known as the “quiet period” – a 90-day window before federal elections.
But in its extraordinary* lawsuit against California, the Department of Justice (DOJ) is attempting to circumvent this ban by directly targeting voters’ ballots rather than their registrations.
If a court approves this approach, it would likely blow a hole in a crucial, decades-old federal voter protection.
“We did not ask you to remove them from your list,” Bill Essayli, the top federal prosecutor in Los Angeles whose name appears on the DOJ’s complaint against California, wrote on social media on Saturday. “We asked you to sequester their ballots so that a judge can decide whether they can be counted.”
Essayli was responding to a message from the Los Angeles County Registrar and Clerk’s Office, one of the defendants in the lawsuit, highlighting protections during the quiet period.
Established by the National Voter Registration Act of 1993 (NVRA), the ban on evicting voters immediately before an election is intended to prevent last-minute purges that could sweep away eligible voters, leaving them without sufficient time to re-register on the rolls.
The DOJ sued California and Los Angeles County on Thursday — well into the quiet period — seeking a court order barring the state and county from counting the potential ballots of about 20,000 people who it says, without evidence, are likely noncitizens.
The lawsuit alleges a violation of the Supremacy Clause, arguing that laws barring noncitizens from voting in federal elections preempt California’s conduct.
If the DOJ’s argument were accepted by a court, it would significantly expand the executive branch’s power over elections. And it could create a way for states to circumvent the NVRA’s ban on last-minute removals.
Technically, the lawsuit does not ask that voters be removed from the rolls. Instead, he calls for them to be prevented from voting. But the practical effect of the lawsuit is the same as that of maintaining the voter rolls: The federal government presents a list of people it believes should not vote and demands that the state take action on it before the ballots are counted.
As a result, the DOJ’s requests appear to violate the spirit and intent, if not the letter, of the NVRA.
The Justice Department, under President Donald Trump, has already sought to weaken protections during the silent period.
Over the past year, the department has argued in court that the federal government could use undisclosed investigative methods to identify voters it claims are ineligible and pressure states to remove those voters one by one until Election Day because the removals would be individual and not systematic.
With the California lawsuit, the DOJ is systematically challenging tens of thousands of ballots using these same vague methods.
Additionally, if state or county officials fail to act, DOJ officials have warned they could face criminal penalties.
“As we warned yesterday, processing a non-citizen’s ballot violates federal law,” Essayli added in his response to the Los Angeles County Registrar and Clerk’s Office.
*The Elias Law Group (ELG) represents pro-voting groups that have asked the court to be added as intervenor-defendants in the DOJ’s lawsuit against California. Marc Elias, president of ELG, is the founder of Democracy Docket.
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