Agents of the Homeland Security Investigations (HSI) work outside the residence of US Rep. Ilhan Omar (D-MN), after US authorities conducted a raid as part of an ongoing investigation by the Justice Department, in Washington, DC, US, October 12, 2026. REUTERS/Annabelle Gordon
A federal judge barred President Donald Trump’s administration from threatening to prosecute Washington election workers, ruling it likely can’t make them set aside ballots still being counted.
U.S. District Judge Jamal Whitehead issued the 14-day restraining order Thursday in Seattle, two days after Election Day, as counties kept counting mail ballots. Two Washington civic groups and a labor union had sued.
The order bars the Justice Department and the Department of Homeland Security from demanding that officials set aside ballots from voters on a federal list of suspected noncitizens, or threatening them with prosecution for counting those ballots.
Whitehead found that federal prosecutors had ordered Washington to hold back ballots rather than simply asking it to.
The Justice Department argued that its Oct. 26 letter to the state was only a request, which Washington turned down, according to the order.
“On this record, Defendants did not ask,” Whitehead wrote. “They directed Washington to set aside specific voters’ ballots, set a deadline, told election officials they would be prosecuted if they counted those ballots as state law requires …”
Prosecutors pressed that demand in a letter, at a news conference and on the radio.
In the letter, Neil Floyd, the acting U.S. attorney in Seattle, and Pete Serrano, the top federal prosecutor in eastern Washington, sent Secretary of State Steve Hobbs (D-WA) a list of about 400 voters they suspected were noncitizens, the order said.
The letter told Hobbs to instruct county officials not to verify or count those voters’ ballots “until citizenship can be determined.”
“Anyone that assists someone in voting illegally would be also guilty of that crime under the aiding abetting theory, just like any other crime,” Floyd said at a news conference that day, when asked whether county officials could be charged for processing those ballots, according to the order.
Yet the letter offered no evidence about any individual voter and did not explain how the list was built, Whitehead found. Washington documented 15 cases of noncitizen voting from 1982 through 2025, Hobbs told reporters last month.
Prosecutors were threatening county workers with charges as accomplices over a list they offered no evidence for, in a state where documented noncitizen voting is rare.
Hobbs refused on Oct. 28, writing that a preliminary investigation showed the list “includes United States citizens and is not reliable.”
“I think we’re going to continually demand that these are segregated. We want to make sure these ballots aren’t counted,” Serrano said in a radio interview the next day, according to a court filing. He added that prosecutors could send letters to all 39 county auditors.
“Their own statements say otherwise,” Whitehead wrote, after Justice Department lawyers told him that “no further action has been taken” since the letter.
The Justice Department had already lost the same fight in California, where a federal judge, the 9th U.S. Circuit Court of Appeals and the Supreme Court all refused to make the state set aside the ballots of alleged noncitizens, Whitehead noted.
The appeals court ruled Oct. 30 that the federal law against noncitizen voting does not let the Justice Department “take charge of or intervene in a state’s administration of an ongoing election.”
“That is the compulsion California holds DOJ has no authority to exercise, and the fact that Defendants pursue it through threats rather than a court order does not change its character,” Whitehead wrote.
“Plaintiffs are likely to succeed on their claim that Defendants have exceeded their authority, and the harm to Washington voters whose ballots are set aside on the strength of an unreliable federal list cannot be undone after the fact,” he wrote.
The order lasts 14 days unless Whitehead extends it, and he will hear arguments Nov. 18 on a longer-lasting injunction. Washington’s counties must certify their results by Nov. 24, the order said.
Without an extension, the order would expire Nov. 19, even if counties are still processing ballots.