Sixty former Department of Justice attorneys from both Democratic and Republican administrations are urging a federal appeals court to reject the Justice Department's last-minute intervention in California's election. They argue that the intervention violates longstanding department policies designed to prevent election interference. The former officials cite guidelines such as Justice Manual Section 9-85.500, which advises against overt investigative or prosecutorial steps near an election, and the department's non-interference policy, which seeks to avoid actions that could affect election outcomes or integrity.
In an amicus brief filed by the Brennan Center for Justice at NYU Law and Complex Appellate Litigation Group LLP, the former officials argue that DOJ is taking the unusual step of seeking election-related relief just days before the midterm election, contrary to department policies that discourage such actions near Election Day. They say these policies aim to prevent election interference, discourage voter participation, or disrupt election administration. The brief cites United States v. Cohen, 152 F.3d 321 (4th Cir. 1998), where courts recognized the importance of avoiding last-minute changes to election procedures. The amici also cite Purcell v. Gonzalez, 549 U.S. 1 (2006), in which the Supreme Court cautioned against altering election rules close to an election, as such changes can cause confusion and undermine public confidence in the electoral process.
The Ninth Circuit Court of Appeals will decide whether the Justice Department can require California to segregate the ballots of about 20,000 voters whom the department claims are ineligible.
According to the brief, DOJ lacks legal authority for its claims against California and Los Angeles County and has not identified a clear statutory basis for its intervention. The former officials note that DOJ typically relies on statutes such as Section 2 of the Voting Rights Act (52 U.S.C. § 10301), Section 11 of the National Voter Registration Act (52 U.S.C. § 20510), and Section 131 of the Civil Rights Act of 1964 (52 U.S.C. § 10101) in federal election-enforcement actions. In this case, however, the department has not cited these or other traditional statutes and instead advances legal arguments that depart from established precedent. The amici argue that this lawsuit significantly departs from the department's usual investigative and enforcement procedures.
The former DOJ attorneys also argue that this litigation risks disrupting an election already underway. They contend that seeking emergency relief just before voting disregards the department's usual deference to state election administrators and disrupts established processes. The brief warns that these actions could confuse voters and officials and put lawful ballots at risk. For example, the brief cites the 2006 Ohio primary, when a last-minute federal court order on provisional ballots caused confusion, delays, and disputed counts. Similarly, in the 2018 Georgia gubernatorial race, late litigation over absentee ballot rules led to inconsistent procedures across counties, confusing voters and resulting in some ballots being improperly set aside. These incidents highlight the disruptive potential of sudden legal interventions shortly before or during voting.
Beyond the immediate legal dispute, the former DOJ officials frame this as a matter of democratic principle rather than partisan advantage. Election integrity depends not only on who wins or loses but also on public confidence that established rules and safeguards are applied consistently. Whether voters identify as Democrats, Republicans, Independents, or something else, preserving free, fair, and orderly elections is a shared civic interest that transcends party politics.
Several of the brief's signers have long advocated preserving Justice Department independence and public confidence in democratic institutions. Joyce Vance has written that prosecutorial independence from political influence is "critical to our criminal justice system," while Barbara McQuade has argued that post-Watergate Justice Department norms were designed to shield law enforcement decisions from partisan pressure and to maintain public trust in the rule of law. Their participation in the brief demonstrates broader concerns about preserving institutional safeguards that have traditionally governed federal involvement in elections.
The signatories also express concern that the department's demands could disenfranchise eligible voters. They argue that requiring officials to segregate ballots during emergency litigation could disrupt the orderly administration of the election and erode confidence in the voting process.
The signers include former Deputy Attorney General Donald Ayer, former U.S. Attorneys Joyce Vance and Barbara McQuade, and former attorneys from the Public Integrity Section and the Civil Rights Division's Voting Section. Collectively, they represent every presidential administration since Lyndon Johnson.
In its conclusion, the brief asks the Court to reject DOJ's request, arguing that the department's actions depart from longstanding election-related safeguards and that "this Court should deny the emergency motion for injunction pending appeal."
David Nevins is the publisher of The Fulcrum and co-founder and board chairman of the Bridge Alliance Education Fund.
