DOJ Asks Washington State to Set Aside Ballots From 405 Suspected Noncitizens One Week Before Midterms

Less than two weeks after the Justice Department pressed California to sequester mail ballots, it has made a similar demand of Washington state. On Monday, Oct. 26, the department sent Secretary of State Steve Hobbs a letter asking him to set aside any ballots cast by 405 people it alleges are registered to vote without U.S. citizenship.

The department says those 405 people cast more than 1,500 votes in prior elections. It wants their ballots in the Nov. 3 midterm held back until state officials confirm eligibility.

What the Justice Department says it found

Neil Floyd, the acting U.S. attorney for the Western District of Washington, announced the list at a Seattle news conference. He called it "the tip of the iceberg."

Floyd said Department of Homeland Security investigators compared publicly available Washington voter lists against federal records, then checked whether the matches had voted. Much of the list came from "recent contacts," he said, because federal officers now routinely check whether people they interact with are registered.

Many of the 405 are lawful permanent residents, the department said. Green-card holders cannot vote in federal elections. The department also acknowledged that some people on the list may have since become naturalized citizens.

Floyd said he is "confident that we are looking at thousands of non-citizens who have been voting in Washington." He gave no statewide count to back that estimate. The department says it expects to send a second list before Election Day.

He blamed the limited numbers on the state. Washington has refused to hand over its full voter database with personal identifiers, Floyd said, so investigators are working "essentially one person at a time." The department has demanded addresses, dates of birth, driver's license numbers and partial Social Security numbers. Floyd also said his office will prosecute people who vote illegally and those who knowingly help them.

Hobbs pushes back

Hobbs said his office is reviewing the letter but called the timing "no doubt intended to cast unfounded suspicion on the results."

His office pointed to a detail in the department's own data: the last vote by one of the 405 people was cast in 1994. The office says the DOJ's matching system can wrongly flag legitimate citizens as noncitizens. It also says noncitizen voting is rare, and that every voter signs a declaration of eligibility on the ballot return envelope.

"We take our responsibility to protect voter information seriously and will only respond to requests that follow due process," Hobbs said. He added: "We see what's happening in California and don't want Washingtonians to be harassed." His office says it has received about 60 Justice Department subpoenas since last month seeking voter information.

Washington has more than 5 million registered voters and mails a ballot to every one of them. Against that base, 405 people is a small fraction. The key questions are whether the list is accurate and whether a federal prosecutor can ask a state to hold ballots without a court order.

The California comparison

The California fight offers one data point on list quality. In a court filing, Los Angeles County Assistant Registrar-Recorder Monica Flores said her staff reviewed a 200-record sample from the federal list of up to 20,000 names. The sample included canceled or inactive registrations, people with no voting history, and voters who appeared to have been born in the United States.

An appeals court on Monday declined to order California officials to set the ballots aside. The ruling is not final. During arguments Sunday, appellate judges questioned the timing, constitutionality and authority of the Justice Department's demand. The Elections Clause of the Constitution gives state legislatures the power to set the time, place and manner of congressional elections.

The Washington demand is a letter, not a lawsuit, and the sources show no court filing over it so far.

Where this fits

Washington is the third state this month where the Justice Department has taken direct action as voting proceeds. California and Alaska are the others. In Alaska, the department sued to preemptively block certification of the state's close Senate race if the Republican incumbent narrowly loses, citing a candidate with a similar name on the ballot.

Washington's 3rd Congressional District is among the most competitive House races in the country. Democrats are counting on Rep. Marie Gluesenkamp Perez to win re-election.

Floyd's core argument is straightforward: noncitizen voting is a federal crime, the state is responsible for preventing it, and the state is withholding the data that would let federal investigators check at scale. Past reviews have found far fewer noncitizen voters than the administration has alleged. Without the state's records, though, neither side can verify the full picture.

The next developments are Hobbs's formal response to the letter and the second list the Justice Department says is coming before Nov. 3.