The ruling shields citizens in California and eight other states from election-related field interviews through Election Day, but it rests on a narrower basis than San Francisco and Santa Clara County sought.
A federal judge in Oakland has ordered the Department of Homeland Security to stop election-related field interviews of people its agents know or should suspect are U.S. citizens in California and eight other states through Election Day, finding that the department’s search for noncitizen voters most likely amounts to intimidation under the Voting Rights Act.
The preliminary injunction, signed Wednesday by Judge Araceli Martínez-Olguín of the U.S. District Court for the Northern District of California, is stayed until 5 p.m. Friday to give the government time to seek emergency relief from the U.S. Court of Appeals for the Ninth Circuit. Unless a higher court intervenes, it takes effect at that hour and lasts until polls close on Nov. 3.
The order covers California, Connecticut, Georgia, Missouri, Nevada, New York, Pennsylvania, Washington and Wisconsin, the nine states the department singled out for what it called a surge.
What the court found
The case, California Nurses Association v. Mullin, was brought by the nurses’ union and National Nurses United, the Voto Latino Foundation, the City and County of San Francisco and Santa Clara County. The Inquirer reported on the local governments’ bid this week.
According to the order, DHS began what it calls the Unlawful Voter Initiative in August, with U.S. Citizenship and Immigration Services generating lists of suspected noncitizen registrants and Homeland Security Investigations agents conducting interviews. An Aug. 31 “Surge Initiative Guidance” named the nine states. The judge wrote that the lists drew on 48.2 million records obtained “through independent sources” and 50.6 million from the Justice Department, drawn from state voter rolls or, for states that refused to share them, commercial versions. DHS then “enriches” the data through a system called iLab using what the judge called “unknown artificial intelligence tools.”
During the surge, the judge wrote, agents were ordered to complete at least 40 reviews of suspected subjects, which left them no more than 12 minutes to clear a person from the list using commercial databases. “Even under the best conditions, there is a high likelihood of error in review because there is no federal database containing citizenship status of U.S. residents,” she wrote.
The judge relied on declarations from union members. One stopped attending campaign events; another would no longer sign up as a poll monitor. “These fears are well understood as intimidation,” she wrote.
The ruling is narrower than the plaintiffs sought. The judge found that San Francisco, Santa Clara County and Voto Latino had not shown standing at this stage, and she granted relief only to the nurses’ unions on their Voting Rights Act claim about intimidation affecting voter assistance and mobilization. She did not decide the plaintiffs’ claims under the Administrative Procedure Act. She required only a nominal $100 bond.
The government’s case
The administration argued that the operations are lawful investigations. Justice Department lawyer Kelsey Helland told the court at a hearing earlier this week that the plaintiffs lacked evidence of specific citizens who had been interrogated and that any intimidation would be “ancillary,” a “minor aspect of lawfully investigative actions,” Courthouse News Service reported. In its filings, the government also argued that the department’s specific investigative authority controls over the Voting Rights Act.
The judge rejected that argument. “Declaring that an action is completed pursuant to legal authority does not make the act necessarily lawful,” she wrote. She also made clear what she was not deciding: “Plaintiffs do not claim, nor does the Court find, that it is unlawful for federal officials to undertake investigations into unlawful voting in federal elections.” She said she made no findings on the extent of voter fraud, while citing other courts that have found noncitizen voting exceedingly rare.
After the ruling, DHS told The Associated Press that it was focused on “removing aliens who vote and dilute the votes of U.S. citizens” and that “we have no plans to question or investigate people we believe to be U.S. citizens.”
Beau Tremitiere, a lawyer for the plaintiffs, told the AP: “It was clear from the start that DHS built its lists on bad data, never checked how often it was wrong, and recklessly sent agents to people’s homes weeks before an election.”
What the order does and does not do
The injunction bars two things in the nine states: election-related field operations and interviews that involve, or are likely to involve, people the agencies know or reasonably should suspect are citizens; and field operations based wholly on records generated by the department’s voter-matching policy against such people.
It does not stop DHS from investigating noncitizens, and it does not touch the Justice Department’s separate prosecutions. On Monday, federal prosecutors announced charges against 28 California green-card holders accused of voting or registering before naturalizing, which the Inquirer covered. The Justice Department is also suing to stop California from counting about 20,000 mail ballots.
How solid the federal lists are remains disputed. Federal officials have raised the number of California records they have flagged to about 37,000, El País reported on Thursday, while some of the people accused deny the charges.
Why it matters here
For Bay Area voters, the practical effect, if the order stands, is that federal agents should not knock on the doors of citizens to question them about their registrations in the final 11 days before the election. The nurses’ lawyers argued that the operations were chilling the voter-assistance work their members do in the closing stretch.
The next decision belongs to the Ninth Circuit if the government appeals. As of early Friday, no appeal had been reported publicly. The order expires when polls close on Nov. 3.
Adaeze Monroe covers Congress, the White House and federal agencies, with a focus on what Washington’s decisions mean for California, for the Washington Bureau. More from Adaeze Monroe
