The Justice Department drew fire for an “unprecedented level of bad-faith argument” after asking a judge who ruled its voter data demand “illegal” to set aside thousands of California ballots.
In a motion filed Friday, DOJ asked U.S. District Judge David O. Carter to make California set aside the midterm mail ballots of more than 20,000 registered voters whom Department of Homeland Security agencies flagged as likely noncitizens.
The department wants that order while it appeals what it calls Carter’s “constructive denial” of an earlier emergency request, treating his failure to rule by its deadline as a rejection. DOJ is running from a judge who has already ruled against it.
“We have, somehow, reached a heretofore unprecedented level of bad-faith argument from DOJ,” Law Dork journalist Chris Geidner wrote on Bluesky.
Geidner was reacting to DOJ’s reliance on a 2025 Supreme Court ruling that treated a judge’s “14 hours and 28 minutes” of inaction as a denial.
That case, Geidner noted, challenged President Donald Trump’s rush to deport people under the Alien Enemies Act when they could have been sent to a prison in El Salvador without due process.
“So they’re asking him for an injunction that they … claim he already denied?” Alex Botoman, a federal public defender in Los Angeles, replied.
“The government’s request is unprecedented and illegal,” Carter wrote in January.
That order dismissed DOJ’s lawsuit seeking California’s unredacted voter rolls, including Social Security numbers for nearly 23 million people. DOJ objected when California flagged the case as related to the new one, which court records show was transferred to Carter on Wednesday.
DOJ’s notice of appeal on Thursday declared “the Court’s silence is a constructive denial.” But a court order shows Carter granted DOJ’s request to file a longer brief the day the case reached him.
“The district court has set a hearing for October 27,” DOJ acknowledged in Friday’s memo.
The memo also says DOJ sought its emergency order on Oct. 15, the day it sued. However, DOJ’s own notice of appeal and court records put that filing on Oct. 19.
The DOJ asked Carter to rule by noon Thursday, then by noon Friday. But government lawyers opposed moving quickly on the defendants' requests.
“[T]he mere existence of a lawsuit alone does not create exigent circumstances,” DOJ argued Thursday, opposing a request by state and county officials to fast-track their motions to dismiss.
The list itself is falling apart.
Meanwhile, Los Angeles County officials called the federal government's voter list “unreliable” in a court filing Tuesday, NPR reported. Of its roughly 20,000 names, 7,035 had county addresses, and some were duplicates.
In a 200-person sample, county officials wrote that 112 registrations were canceled or inactive, and 38.9% of voters whose birthplace was “meaningfully reported” indicated they were born in the U.S.
DOJ’s memo dismisses that review as an “unspecified ‘sampling’ of the data.”
“There may be some names on there who it turns out ultimately are citizens, we’re not perfect,” Acting Deputy Attorney General Trent McCotter said Monday, according to NPR.
On Wednesday, U.S. District Judge Araceli Martínez-Olguín pointed to “a high likelihood of error” in how DHS assembled its list of suspected noncitizen voters to investigate in nine states, including California, CBS News reported.
Friday’s DOJ filing does not mention her ruling.
“I expect this lawsuit to go nowhere,” Rick Hasen, a law professor at the University of California, Los Angeles, wrote the day DOJ sued.
“I think this is a political document, potentially laying the groundwork for Trump to claim that the election results are illegitimate because California has not done enough to deal with noncitizen voting,” Hasen added.
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