Judge Bars Justice Department From Threatening Election Workers Days Before the Midterms

A federal judge in San Francisco on Friday night barred the Justice Department and the Department of Homeland Security from threatening election workers with criminal prosecution for counting ballots in the midterm elections, four days before voters decide control of Congress.

U.S. District Judge Trina Thompson granted a temporary restraining order in a lawsuit brought by the Service Employees International Union, the American Federation of State, County and Municipal Employees, the League of United Latin American Citizens and the NAACP. She ruled without waiting to hear from the Justice Department first, the Associated Press reported.

What the order blocks

Until 5 p.m. on November 16, the two departments may not pressure election officials to stop processing a registered voter's ballot solely because the administration claims that voter is ineligible. They may not demand that officials purge specific voters from the rolls, refuse them ballots or set their ballots aside on that basis. They may not threaten workers with prosecution for refusing those demands or for counting ballots the way state and federal law requires.

Thompson wrote that election workers who distribute, process or count ballots in line with the law "do not violate federal criminal law even if a particular ballot belongs to a registered voter alleged by Defendants to be ineligible to vote." She said the administration's actions "are likely to have the effect of interfering with election administration and disenfranchising lawful voters," and found they likely violated the ban on intimidation in Section 11(b) of the Voting Rights Act.

The order also requires the administration to tell state and local officials who received its demands that those demands and threats of prosecution have been blocked by the court. The Justice Department must also report to the court any pending search warrant applications, grand jury subpoenas or other demands for election materials tied to its lists of alleged ineligible voters.

A fight that built for weeks

The ruling caps weeks of escalation over ballots the administration says were sent to likely noncitizens. The Justice Department sued California and Los Angeles County on October 15, asking a court to set aside mail ballots from more than 20,000 registered voters. It has also demanded that Washington set aside 405 ballots, subpoenaed Los Angeles County election workers to a grand jury, and on Thursday sent letters to election officials in all 50 states about preserving election records, letters that cited penalties of up to a year in prison.

Earlier on Friday, a federal appeals court rejected the Justice Department's emergency request to force California to set aside the disputed ballots, the second time this week a panel ruled against the department in that case.

"Because the public has a paramount interest in ensuring that election officials and workers are able to carry out their work in accordance with federal law and election procedure, and the official day of the Elections is only a couple of days away, the balance of the equities and public interest weigh in Plaintiffs' favor," Thompson wrote.

The Justice Department must file its response by noon on Monday, November 2, and Thompson set a hearing on a longer preliminary injunction for November 13. The department had no immediate comment on the ruling. Republicans hold narrow majorities in both the House and the Senate, and the November 3 elections will decide control of Congress.