DOJ moves to drop its lawsuit asking California to set aside alleged noncitizen ballots

(CBS NEWS) — The Justice Department on Friday moved to dismiss its own lawsuit that sought to stop California from counting roughly 20,000 ballots it alleged went to noncitizens until their immigration status could be verified.

The request to dismiss the case comes days after Republicans’ significant losses in the midterm elections and about a week before a scheduled hearing where a special master was slated to evaluate the accuracy of the list. California officials have previously said the list is out of date and includes legitimate voters — a sentiment that the federal judge presiding over the case echoed in his blistering order denying the federal government’s request.

The case was at the forefront of the Trump administration’s effort to assert control over state-run elections across the country, which Mr. Trump has said are rife with illegal voting without providing evidence.

On Monday, on the eve of Election Day, the Supreme Court rejected an emergency appeal from the Justice Department to require California to separate mail ballots received from the approximately 20,000 people it alleged were noncitizens.

The Supreme Court rejected the appeal in a one-line, unsigned order.

The Justice Department remains enmeshed in litigation with immigrant and voting rights groups seeking to limit its use of the list of what it says are suspected noncitizens. Another controversial lawsuit it filed in Alaska at Mr. Trump’s direction before the election to block the victory of the Democrat in that state’s Senate race was swiftly dismissed by a federal judge. The administration is appealing that ruling but has yet to file a full brief at the Ninth Circuit Court of Appeals.

California had processed roughly 9 million ballots as of early Friday, with nearly 5 million still left to be counted, according to state election officials. The motion to dismiss the lawsuit said that, by the time of the upcoming hearing, the state will have already irreparably “commingled the challenged ballots with lawful ones.”

The United States Attorney’s Office for the Central District of California referred all questions to the Department of Justice in Washington, D.C., which did not respond to an emailed request for comment on Friday evening.

California prosecutors in recent weeks have arrested over 30 noncitizens who are accused of illegally registering to vote. Some who were arrested were also accused of voting in previous elections. Elections clerks around California in the week before the election were sent subpoenas to testify before grand juries slated to convene in November. It’s not clear who is being criminally charged in those cases, but the department does not typically subpoena people whom it regards as targets of a criminal investigation to appear before a grand jury.