At a hearing in Oakland, a federal judge pressed both sides on standing and scope as two Bay Area governments asked her to stop immigration agents from questioning residents about their eligibility to vote.
By Staff Reporter
A federal judge in Oakland on Monday questioned whether San Francisco, Santa Clara County and a coalition of unions and voting-rights groups can stop the Department of Homeland Security from sending agents to homes to investigate suspected noncitizen voting before the Nov. 3 election.
U.S. District Judge Araceli Martínez-Olguín took the request for a preliminary injunction under submission after the hearing and is expected to rule in the coming days, The Sacramento Bee reported. Courthouse News Service reported that the judge signaled she was unlikely to grant relief on the plaintiffs’ Administrative Procedure Act claims but took their Voting Rights Act claims under submission.
The case, California Nurses Association v. Mullin, is the Bay Area’s main front in a widening fight between the Trump administration and California over who is voting in the state. On the same day as the hearing, the Justice Department announced charges against 28 lawful permanent residents across California, five of them in the Northern District, accused of registering or voting illegally.
What the suit challenges
The complaint, filed Sept. 18 in the U.S. District Court for the Northern District of California, names Homeland Security Secretary Markwayne Mullin as a defendant. It alleges that the department has adopted what it “reportedly calls” the Unlawful Voter Initiative, and that “DHS is now deploying armed and often militarized agents to homes to interrogate residents about whether they are eligible to vote.”
The plaintiffs describe two parts of the policy: lists of allegedly unlawful registrants built by U.S. Citizenship and Immigration Services from federal records and state voter files, and field operations by Homeland Security Investigations, a unit of Immigration and Customs Enforcement, to confront the people on those lists. They argue the matching will sweep in naturalized citizens and others, and that the visits violate Section 11(b) of the Voting Rights Act, which bars intimidating or coercing voters.
The complaint also cites a whistleblower disclosure released Sept. 14 by Senators Alex Padilla of California and Chuck Schumer of New York, which the plaintiffs say shows U.S.C.I.S. acknowledged in agent trainings that its source data includes large categories of U.S. citizens.
The local governments are joined by the California Nurses Association, National Nurses United and the Voto Latino Foundation, with Protect Democracy and the National Immigration Law Center as co-counsel.
“This unlawful tactic is textbook voter intimidation weeks before an election—by a federal agency no less,” San Francisco City Attorney David Chiu said in a statement announcing the suit.
Inside the courtroom
Geoffrey Curfman, a lawyer for the plaintiffs, told the judge that “the government is sweeping with an extremely broad net” and that “there is a substantial risk that U.S. citizens will become wrapped up and targeted through these investigations,” according to The Bee. He cited Nevada, where, he said, the government initially pointed to about 16,000 people as possible voting violators, later reduced that figure to 185, and all of them turned out to be citizens.
Judge Martínez-Olguín pressed him to define precisely what was being challenged. “From the defendants, I’ve gotten a very good argument for why what you’re challenging is somewhat amorphous and hard to pin down,” she said, The Bee reported.
Kelsey Helland, a Justice Department lawyer, argued that sharing data between U.S.C.I.S. and ICE and deploying agents are investigative tactics, not a final agency action that can be challenged under the Administrative Procedure Act, according to Courthouse News. He said the plaintiffs had not identified specific citizens who had been interrogated and called any intimidation, at most, “ancillary intimidation that rises out of that. It is a minor aspect of lawfully investigative actions.”
Asked for precedent for the government’s position that an investigation alone cannot violate the Voting Rights Act, Mr. Helland said he had not found one. “I don’t know that that proposition has been tested in the courts before,” he said, according to The Bee. “It makes sense to me as a matter of structural logic.”
The standing question for the Bay Area
Much of the hearing turned on whether the local governments have standing. San Francisco and Santa Clara have said in court declarations that they have had to train poll workers on voter intimidation and expand outreach in response to the federal operations. Mr. Helland countered that those steps were voluntary. “It’s something that they are choosing to do because they may think it will result in a better-administered election or result in people feeling more comfortable, but it’s not necessary,” he said.
According to the complaint, more than 250,000 San Francisco residents, about 34 percent of the population, were born abroad, and more than 175,000 are naturalized citizens. Santa Clara County’s foreign-born population exceeds 750,000, including more than 400,000 naturalized citizens.
The government’s case
In a brief filed late Friday, the plaintiffs’ lead lawyer, Beau Tremitiere, wrote that the government had assembled a list of about 300,000 people and planned to send hundreds of investigators into the field, The Bee reported. One H.S.I. Instagram post included in the court record reads, “HSI in Northern California will investigate any allegations of non-citizen voting and is committed to ensuring the enforcement of federal election law.”
Monday’s charges, part of what the Justice Department calls Operation Protect the Vote, included residents of San Francisco, San Jose, Daly City, Hayward and Petaluma. The department said each of the 28 appears on a list of more than 20,000 likely noncitizen registrants that it gave California election officials on Oct. 13, the list at the center of a separate federal suit over those voters’ mail ballots. “Every illegal vote cancels out the vote of a lawful American citizen,” Acting Deputy Attorney General Trent McCotter said. John A. Condon, acting executive associate director of H.S.I., said the agency would ensure “that every investigation is conducted fairly, thoroughly, and consistent with due process.” The department noted that the defendants are presumed innocent.
With mail ballots already in voters’ hands, any order would govern only the campaign’s final two weeks.
