Pierce County election workers can count ballots without fear of federal prosecution after a Seattle federal judge blocked the U.S. Department of Justice (DOJ) from forcing Washington to set aside votes from roughly 400 alleged noncitizens.

U.S. District Judge Jamal Whitehead issued the temporary restraining order (TRO) on Thursday, Nov. 5, in a 25-page ruling that found federal prosecutors had crossed the line from requesting cooperation to issuing demands backed by threats.

The order lasts 14 days. A hearing on whether to extend it with a longer injunction is set for Nov. 18, six days before Pierce County's scheduled Nov. 24 certification of election results.

"For the next two weeks, while Washington's counties count and certify the ballots already cast, DOJ may not demand that election officials set aside a registered voter's ballot because the voter's name appears on a federal list and may not threaten those officials with prosecution for counting votes as state law requires," Whitehead wrote.

He added: "Voters who followed the rules should not lose their votes to a list that even its authors admit may include citizens."

How it started

On Oct. 26, Acting U.S. Attorney Neil Floyd and First Assistant U.S. Attorney Pete Serrano sent Secretary of State Steve Hobbs a letter listing roughly 400 registered voters they alleged were noncitizens, as first reported by The Seattle Times. The letter gave Hobbs 24 hours to instruct county officials to stop verifying or counting those voters' ballots.

At a press conference the same day, Floyd said the list was "only the tip of the iceberg" and warned that anyone who assists an ineligible voter "would be also guilty of that crime under the aiding abetting theory," according to the court order.

Hobbs, a Democrat, refused. Washington's review of the list found at least 62 people on it had not even been sent a ballot because their registrations were canceled, inactive or could not be found. Multiple people on the list had shown proof of U.S. citizenship to the Department of Licensing, the court order states.

Hobbs called the letter a "dumpster fire disguised as a legal document," according to The Seattle Times.

After Hobbs declined, Serrano said on the radio Oct. 29 that DOJ would "continually demand that these [ballots] are segregated" and would send letters directly to all 39 county auditors if necessary, according to the court order.

What the judge found

Whitehead, appointed by President Joe Biden, ruled that federal prosecutors were not merely asking for cooperation. They were directing the state to set aside specific ballots, setting deadlines and threatening prosecution.

The ruling aligns with a 9th U.S. Circuit Court of Appeals decision in a similar California case. That court held the DOJ could ask states to set ballots aside but could not compel them to do so. The U.S. Supreme Court declined to overturn that ruling.

The order does not stop the federal government from prosecuting anyone who votes unlawfully, sharing information with election officials or asking Washington for cooperation.

What comes next

Pierce County Elections conducted a public audit of its ballot-counting equipment Nov. 5 at the Pierce County Election Center in Tacoma, according to Tacoma Weekly. The county is scheduled to certify results at 10 a.m. Nov. 24. Hobbs must then certify statewide results by Dec. 3.

Justice Department spokesperson Kiersten Pels said the DOJ is "reviewing the court's order and evaluating next steps," according to The Seattle Times. The Nov. 18 hearing will determine whether the restraining order becomes a longer injunction covering the full certification window.