Justice Department Sues California to Stop Counting Ballots From About 20,000 Alleged Noncitizens

Two days after Acting Deputy Attorney General Trent McCotter gave California 48 hours to act on a federal list of alleged noncitizens who were mailed ballots, the Justice Department went to court. It filed a civil complaint Thursday, Oct. 15, in U.S. District Court in Los Angeles, just after the noon ET deadline expired.

The suit asks a judge to order California not to tabulate mail ballots from voters the federal government identifies as likely noncitizens until their citizenship is verified. The filing puts the number at about 20,000, which Democracy Docket reports is the first time the number has been revealed.

What the complaint alleges

The complaint says U.S. Citizenship and Immigration Services ran a "multiagency and multilevel review" of state voter data and federal citizenship records. It says that review found, with "high confidence," roughly 20,000 likely noncitizens registered to vote in California. Homeland Security Investigations then conducted its own investigation and reached the same conclusion, the complaint says.

Because California sends a ballot to every registered voter, the DOJ alleges "nearly 20,000 noncitizens in California have been sent a vote-by-mail ballot" or will receive one, with many addresses in Los Angeles County.

The department cites 18 U.S.C. § 611, the federal statute barring noncitizens from voting in federal elections, and the Supremacy Clause. It calls the relief it wants "commonplace election relief when a ballot is called into question."

U.S. Attorney General Todd Blanche defended the filing. "State-facilitated voter fraud is unacceptable in the United States of America," he said. "If found responsible in a court of law, the State of California will have seriously undermined confidence in our electoral system."

A DOJ spokesperson earlier said the matter "should not be controversial, as the criminal statute is clear: Only American citizens may vote in federal elections."

California's response

Gov. Gavin Newsom called the suit "a sad, desperate attempt by Trump to use his politicized Justice Department to try to suppress California voters just three weeks before Election Day." He added: "Courts have made clear the federal government has no role in running state elections."

Secretary of State Shirley Weber's office disputes the underlying numbers. It noted that in July, President Trump and Homeland Security Secretary Markwayne Mullin claimed California had 190,000 noncitizens on its rolls. Her office calls that claim unsubstantiated and says it asked in writing for the methodology and data sources. "They refused and provided California with nothing," the statement said.

Weber's office also said it was never given the list. The DOJ gave a password-protected thumb drive to Los Angeles County instead.

L.A. County Registrar Dean Logan said his office has not opened the drive because doing so would conflict with data privacy and security protocols. He said the letter did not specify the number of individuals involved or describe what the records contained. "Any action to remove a voter from eligibility must be based on verifiable information, not assertions of unconfirmed data matching," Logan said.

Weber's office points to a track record of other states purging U.S. citizens from their rolls based on DHS/SAVE data. California already requires registrants to check a box confirming citizenship and sign an attestation under penalty of perjury.

The numbers don't line up

The 20,000 figure is significantly lower than the more than 190,000 noncitizens the administration alleged in July. The LA Times reports that the lawsuit makes no mention of that earlier estimate or why it was so much larger than the current one.

Democracy Docket reports that the administration's assertions in other states also fizzled dramatically. In Nevada, it says, the flagged number went from 15,903 to 185 to zero. California was one of four states DHS singled out this summer.

The department's argument has a concrete hook. California mails ballots to all registered voters, and McCotter's letter said the state's July response did not contest that noncitizens receive ballots through that system. The DOJ's position is that if a state will not confirm eligibility, the federal government can ask a court to step in.

California's position is that elections belong to the states. Democracy Docket's reading of the complaint is that it provides no legal authority letting the federal government dictate how California administers elections and processes ballots, a power the Constitution's elections clause gives to the states. A court will have to resolve that question.

Timing

Ballots began going out Oct. 5 to California's roughly 23 million registered voters. Election Day is Nov. 3.

McCotter's letter had asked officials to segregate, not cancel, the ballots of anyone whose citizenship could not be independently confirmed. It also asked that no ballot be sent to flagged voters who had not yet received one, and that signature verification and tabulation of returned ballots be held off.

The lawsuit asks a federal court to immediately bar the state from counting the ballots. The ruling will decide whether the federal list, which California has not been able to examine and which Logan has declined to open, can hold up any ballots before Nov. 3.