Washington and Sacramento should check the ballot list together before the count is final

Opinion

By Simon Kettering

WASHINGTON — Two governments agree on the most important point in their fight over California’s mail ballots. Only citizens should vote, and only eligible voters’ ballots should count.

The Justice Department says California is mailing ballots to people who should not have them. In a lawsuit filed Oct. 15, it said a Homeland Security analysis comparing state voter files with federal immigration data found more than 20,000 registrants who are likely noncitizens, and it asked a federal court to make the state set those ballots aside until citizenship is confirmed. California Secretary of State Shirley Weber’s office says it “shares with the USDOJ, a commitment to ensuring only persons eligible to vote can participate in our elections,” but calls the request unlawful and unsupported.

Since then the dispute has moved from court to court. The department told U.S. District Judge David O. Carter that his silence was a “constructive denial” of its emergency request and appealed to the 9th Circuit. The state answered that nothing had been denied and that a hearing is set for Oct. 27. Election Day is Nov. 3.

Each side has a real point.

The administration’s concern is not hypothetical. On Oct. 19, prosecutors in all four of California’s federal districts charged 28 lawful permanent residents with crimes including falsely claiming citizenship to register, and in many cases to vote. Every one of them, Acting Deputy Attorney General Trent McCotter said, is on the federal list. The charges are accusations, and the defendants are presumed innocent. But they show the list is not just noise, and the department is right that a ballot, once separated from its envelope and counted, cannot be pulled back out.

California’s concern is not hypothetical either. Los Angeles County officials told the court that in a preliminary review of 200 names from the list, many appeared to be citizens, and most had not voted and had not been sent ballots, CalMatters reported. McCotter himself acknowledged that “there may be some names on there who it turns out ultimately are citizens.” A citizen whose ballot is set aside because of a database mismatch has been wronged too.

Those two points are not in conflict. They describe a list that is useful but imperfect, which is what lists usually are. The fix for an imperfect list is to check it, name by name, before the count is final.

That is a job for both governments working together. The federal government has the immigration records. The state and its counties have the registration files, signatures and voter histories. Neither can do the check well alone. California officials say they asked for a detailed written account of the federal methodology and did not get one. According to Bonta’s filing, federal officials proposed a virtual meeting instead, and the state declined. “If they wanted to cooperate, they have our number,” McCotter said. Both accounts can be true, and neither one helps a voter.

Here is a practical path. California already compares the signature on every returned mail ballot with the voter’s record before the ballot is separated from its envelope, and it notifies voters so they can fix a missing or mismatched signature. Ballots tied to names on the federal list could go through that kind of review, with federal agencies providing the records behind each flag and county officials confirming or clearing each name. Voters cleared would be counted. Voters still in question could be asked to confirm their citizenship, as other voters are asked to cure a signature. Counties would not have to stop counting everyone else.

That would not end the lawsuit. It would shrink it from 20,000 names to the few that are actually disputed, and it would give both sides what they say they want: a count that excludes ineligible ballots and includes every eligible one.

The courts may still decide the larger legal questions. Voters should not have to wait for them. Washington and Sacramento have 10 days.

The Inquisitor asked the White House, the National Conference of State Legislatures, the R Street Institute, Protect Democracy, Democracy Forward and the U.S. Attorney’s Office for the Eastern District of California for their views. Any responses will be added.

Photo: The First Street U.S. Courthouse in downtown Los Angeles. Levi Clancy, via Wikimedia Commons, CC0.