Both Sides Now Hold a Criminal Charge Over the Count

On July 7 the Justice Department put its threat in writing to every election officer in the country.

Any election officer, including the chief election officer of the state, who knowingly retains noncitizens on the state's [state voter registration list] or facilitates noncitizens in receiving and casting ballots could be subject to criminal liability. — Harmeet Dhillon

Five days before California's highest court ruled unanimously that ballots must stay in election officials' custody, the state's governor signed the answer into law: seizing ballots before certification is now a felony ^[1]. The court's holding named the rule the new felony protects.

And the new laws I signed just last week add new protections, so attacks like this cannot happen again. — Gavin Newsom

Two criminal laws now stand on either side of November's count — the Justice Department's, aimed at the officials who keep names on the rolls, and California's, aimed at anyone who takes the ballots out of their hands. Each side now holds a criminal charge over the other's central act. California did not invent the offense in the abstract. A sheriff in Riverside County had taken 650,000 voted ballots from a special election, and the seizure pushed back the certification of the results ^[1]. On September 24 the state's highest court ruled against him, unanimously, holding that search warrants do not override the state Elections Code ^[1]. The felony was signed five days before that ruling, and its one precedent is a state officer's seizure. Attorney General Rob Bonta described the offense the way the federal courts would later describe the Justice Department's own methods.

Election fraud can and should be investigated. But misuse of criminal investigative tools — without any evidence that a crime was committed — needlessly undermines trust in our elections system and in law enforcement — Rob Bonta

The federal side moved in the opposite direction — out of the courtroom and onto the ground, this week. Armed agents hand-delivered letters to all 58 California counties demanding that roughly 20,000 suspected noncitizen ballots be segregated and sequestered within 48 hours, the criminal threat attached ^[2]. Judge Carter blocked the order from the bench, saying it would "wreak havoc" on certification timelines, and appointed a special master to investigate how the 20,000-name list was built ^[2]. His alternative was to leave the ballots where they are and "go out and indict" individuals instead. There are, in fact, individual cases — noncitizen voters charged at better than one a day since September, sixteen across Minnesota, Louisiana, Florida and Wisconsin, ten more arrested in North Carolina ^[3][4]. But that trickle is not what a demand touching 20,000 ballots at once is for. The scale is the point, and the scale is what the judge told the department to abandon. The prosecutor pressing the demand is himself under judicial question. The same day a federal judge ruled that Bill Essayli is unlawfully serving as a "de facto" United States Attorney without Senate confirmation, he kept leading the fight against the 20,000 ballots ^[5].

In sum, Essayli is unlawfully serving as a ‘de facto’ United States Attorney. — J. Michael Seabright

Three months earlier he had said plainly what that means in practice.

Let me be clear: I don’t care who you are — if you impede federal agents, you will be arrested and prosecuted. — Bill Essayli

The department's answer to the appointment rulings has been to re-paper the designations rather than withdraw the officials — in New Jersey, Nevada, Los Angeles and northern New York, then again in California ^[6][5]. None of it waits for a ruling. The 48 hours run out before the Ninth Circuit can hear the department's appeal of the injunction; the monitors are deployed on election day while the Colorado appeal sits unresolved ^[2][7]. Washington's secretary of state, Steve Hobbs, said a demand that his state set aside current ballots was timed "to cast suspicion on election results," and tied his refusal to California — "we saw what happened in California and don't want Washingtonians to be harassed" ^[8]. The states have answered less with lawsuits than with walls. Orange and Los Angeles counties will release no ballot to the federal government without a judge-signed warrant ^[9]. Clerks and mayors in Indiana, Arkansas, Colorado, Wyoming and Massachusetts have barred the monitors from polling places ^[10]. Rhode Island trained 2,200 poll workers on documenting federal observers and barred ICE from within two hundred feet of the polls ^[11]. So the count now runs between two enforcement systems, each holding a criminal instrument aimed at the other's core act, and the federal one is already in use. But every federal instrument runs on a clock that expires before a ruling can arrive — the 48 hours, election day, the certification deadlines the segregation order would have broken, while the appeals sit pending ^[2][7]. California's felony waits untested; its one precedent is a state officer's seizure, and nothing on the record extends the law to federal agents ^[1]. The special master has not reported ^[2]. Both sides hold an instrument. The federal one has already been used, on deadlines that expire before any appeal rules on it. California's waits, untested, for the first federal agent to try it.