‘We didn’t ask you to remove them’: DOJ’s California lawsuit aims to get around federal voter protections

Federal law bars states from systematically removing voters from registration lists during what’s known as the “quiet period” — a 90-day window before federal elections. 

But in its extraordinary lawsuit* against California, the Department of Justice (DOJ) is trying to bypass that ban by targeting voters’ ballots directly instead of their registrations.

If a court approves that approach, it would likely blow a hole in a crucial, decades-old federal voter protection.

“We didn’t ask you to remove them from your list,” Bill Essayli, the top federal prosecutor in Los Angeles whose name is on DOJ’s complaint against California, wrote on social media Saturday. “We asked you to sequester their ballots so a judge can decide whether they may be counted.” 

Essayli was responding to a post from the Los Angeles County registrar and clerk’s office, one of the defendants in the lawsuit, highlighting the quiet period protections.

Established by the National Voter Registration Act of 1993 (NVRA), the ban on removing voters right before an election aims to prevent last-minute purges that could sweep up eligible voters, leaving them without enough time to get back on the rolls. 

The DOJ sued California and Los Angeles County Thursday — well within the quiet period — seeking a court order barring the state and county from counting potential ballots from around 20,000 people it alleges without evidence are likely noncitizens.

The lawsuit alleges a violation of the Supremacy Clause, arguing that laws barring noncitizens from voting in federal elections preempt California’s conduct.

If the DOJ’s argument is accepted by a court, it would substantially expand the executive branch’s power over elections. And it could create an avenue for states to get around the NVRA’s ban on last-minute removals. 

The lawsuit technically doesn’t ask for the voters to be removed from the rolls. Instead, it asks to have them blocked from voting. But the practical effect of the lawsuit is the same as voter roll maintenance: The federal government is presenting a list of people it says shouldn’t vote and demanding the state act on it before ballots are counted. 

As a result, DOJ’s demands would appear to violate the spirit and intent, if not the letter, of the NVRA.

Already,  the DOJ under President Donald Trump has sought to weaken the quiet period protections. 

Over the past year, the department has argued in court that the federal government can use undisclosed investigative methods to identify voters it claims are ineligible and pressure states to remove those voters one by one right up to Election Day, because the removals would be individual, not systematic.

With the California lawsuit, the DOJ is systematically challenging potentially tens of thousands of ballots using those same vague methods.

Further, if state or county officials don’t act, DOJ officials have warned they could face criminal penalties.

“As warned yesterday, processing a noncitizen’s ballot violates federal law,” Essayli added in his reply to Los Angeles County’s registrar and clerk’s office.

*The Elias Law Group (ELG) is representing pro-voting groups who have asked the court to be added as intervenor-defendants to DOJ’s lawsuit against California. ELG firm chair Marc Elias is the founder of Democracy Docket.