The Justice Department went back to Judge Trina Thompson on Monday and asked her to stay or dissolve her own restraining order — the order that bars the Department from threatening election workers with prosecution for processing ballots the way state and federal law require. In its motion in SEIU v. U.S. Department of Justice, the Department contests the idea that it "intimidates" election workers when it reminds them that federal law makes it a crime for a noncitizen to vote in a federal election, argues that the election-worker unions who sued have no standing because their members are not harmed by such reminders, and asks the judge for an immediate ruling. The Department has also appealed to the 9th Circuit, which had not ruled as of Monday morning.
Judge Thompson, of the Northern District of California, issued the temporary restraining order on Friday evening, before the Department had even filed a response. It applies nationwide and runs until 5 p.m. on November 16, past Tuesday's election and the first count. It bars the Justice Department and the Department of Homeland Security from threatening, intimidating or coercing election officials and workers to halt processing, segregate or refuse to count the ballots of registered voters solely because the government alleges those voters are ineligible; from demanding that officials remove such voters from the rolls; and from threatening prosecution for counting ballots as the law requires. It also orders the Department to tell every recipient of its letters that the demands have been enjoined, and to disclose to the court any pending search warrant applications, grand jury subpoenas or other demands for election materials tied to its lists of alleged noncitizens. The judge found the unions and civil-rights groups likely to succeed on their claim that the Department's campaign violated Section 11(b) of the Voting Rights Act, which bans intimidating or coercing anyone for voting or for aiding another person to vote, and wrote that workers who process ballots as the law requires do not violate federal criminal law.
The Department's motion takes aim at that legal finding as well. It argues that Section 11(b) does not apply to noncitizens, who have no right to vote, and so does not shield workers who knowingly process illegal ballots either — and that a reminder of what the law says is not intimidation. The suit was filed on Thursday by the SEIU, AFSCME and the AFL-CIO, which represent election workers across California, together with the NAACP and LULAC. Their complaint says the Department sent its letters to 57 of California's 58 counties, that armed Homeland Security officials delivered letters to counties on October 23, and that the Department opened a criminal investigation and issued grand jury subpoenas to Los Angeles County election workers.
In their opposition, the unions say the Department's motion rests on misrepresentations of the record, and they point to the Department's own words. In an October 16 letter to Los Angeles County election officials, quoted in the opposition, the Department warned that officials who knowingly tabulate ballots cast by people identified by federal agencies as noncitizens risk becoming "aiders and abettors to a federal crime." The unions argue their members are harmed now, by the threats themselves — left with a choice between obeying the Department's demands and doing the duties the law sets for them, at the risk of criminal investigation and prosecution.
For the workers who will process and count Tuesday's ballots, the order means they can do that work under the normal rules, in California and across the country, without a federal prosecution threat hanging over ballots cast by registered voters the government says are ineligible. A hearing on a longer-lasting injunction is set for November 13, and the separate fight over the Department's demand that California set aside some 20,000 ballots continues in its own case, which the Department has already carried to the Supreme Court.
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