DOJ charges 28 in California with voting crimes as election tensions escalate

The Justice Department announced on Monday it was charging 28 noncitizens with election crimes in California, signaling a further escalation over the state's voting system that looks like it will continue through Election Day and beyond.

The DOJ also filed an emergency request in federal court to stop California from processing ballots returned by people on the voter rolls whom the federal government says are "likely noncitizens." The state has asked for specific information on how the federal government came to its conclusions, but has not received it.

"This Department of Justice will not look the other way while noncitizens vote in federal elections," Acting Deputy Attorney General Trent McCotter said at a press conference on Monday announcing the election crime charges. "Unfortunately the same can't be said for California and L.A. County."

Noncitizen voting has never been found to be a widespread problem in American elections, but the Trump administration is devoting significant resources to uncovering the ineligible voting that does occur. The DOJ has been announcing handfuls of new charges almost every day as early voting gets underway in many states.

The Justice Department's latest request in federal court is a continuation of a saga that began this summer with President Trump's primetime speech on election integrity. It took a major turn last week with the delivery of a flash drive to Los Angeles County that contained 20,000 names and a 48-hour deadline to investigate them. Local and state officials declined to do so, and the federal government sued.

McCotter escalated the dispute further on Friday by warning California officials in a letter that they could be criminally prosecuted for knowingly processing ballots "cast by individuals identified by federal agencies as noncitizens." President Trump wrote on Truth Social that evening: "They will all go to jail for a long period of time!!!"

Taken together, the threats have local officials and election experts worried that the adversarial posture of the Justice Department towards California portends more actions to come aimed at delegitimizing results in this fall's midterms.

"There's a few things to be worried about," said Rick Hasen, an election law expert who runs UCLA's Safeguarding Democracy Project. "One is the risk of disenfranchising eligible voters. The other is the risk that it further undermines voter confidence in the electoral process by making it seem like [noncitizen voting] is a major problem when it is not. And the third risk is that this is going to be used as some sort of pretext to try to seize ballots or interfere after the election is over."

Dana Lewis, the Republican county recorder for Pinal County, Ariz., said local officials nationwide are watching and communicating about what's happening in California, the same way they did when the FBI raided an elections office in Fulton County, Ga. in January.

If those officials are administering a race this fall that is close or contested, they feel they could be next, she said.

"When this impacts another jurisdiction, you automatically have to feel that," Lewis said. "If it's happening in Georgia, if it's happening in Colorado or California, we're all watching."

New criminal charges against noncitizens in California

All 28 people charged in California on Monday are green-card holders, and all appeared on the list of 20,000 names the DOJ gave California officials last week, according to DOJ officials.

A number of them do not appear to have actually voted, and some registered to vote more than 20 years ago. Many are accused of making false statements in their naturalization applications, which ask whether applicants previously registered to vote or claimed U.S. citizenship.

Previous research has shown that when noncitizen voting and registration occurs, it is also often the result of bureaucratic error and not intentional fraud. New Jersey revealed this summer that a software glitch at the DMV registered more than 6,000 people to vote even though they had indicated they were noncitizens.

Bill Essayli, the First Assistant U.S. Attorney for California's Central District, downplayed that possibility on Monday, however.

"It's not something that just happens to you," Essayli said. "They either attested to it when they got a driver's license, or they went out of their way to file a voter registration form, and they swore under oath that they were a citizen."

In the past seven weeks, the Justice Department has charged 113 noncitizens across 20 states with voting and registration crimes, officials said at Monday's press conference.

UCLA's Hasen said the charges seem to be meant to make noncitizen voting "look like a bigger issue than it is."

"Given that there's over 20 million registered voters in California, this is quite a small number of allegations," Hasen said. "And we don't know how many of these allegations will even pan out. And so even if all of these were in fact people who were illegally voting, it's a drop in the bucket compared to the number of voters in California."

Recent polling suggests a sizable portion of the American public thinks immigration enforcement will be present at voting locations this fall, despite federal law banning armed federal agents from the polls. Non-white voters are more likely than white voters to say they fear voting could put them at risk of being questioned by immigration authorities despite being citizens.

In an interview earlier this fall with NPR, Los Angeles County's top voting official, Dean Logan, alluded to those worries.

"Given everything leading up to this election, what we're trying to remind voters is the best way to secure the election is through your participation," Logan told NPR. "Don't be distracted by the litigation. Don't be distracted by the mis- and disinformation. If you have questions, let us know, let us answer them. But don't let this keep you from voting," he said.

"Because if you're not voting, none of the rest matters, right?"

An unprecedented demand by DOJ

The Justice Department's request that a federal judge block California and Los Angeles County from processing ballots from the list of 20,000 "likely noncitizens" it gave state officials last week is unprecedented and an especially unusual request given that voting is already underway.

California officials have argued that complying with the Department's demand to set the ballots aside would be unlawful and noted the DOJ has not confirmed that the voters on the list are noncitizens.

"The extraordinary measures you demand are contrary to both federal and state law," California Secretary of State Shirley Weber wrote to the DOJ's McCotter on Oct. 13.

"Withholding ballots from some duly registered voters and segregating and refusing to tabulate voted ballots submitted by others, is an unprecedented suspension — and even denial — of voting rights," she wrote.

Los Angeles County's assistant county counsel, Peter Bollinger, wrote to McCotter on Oct. 15: "we are not authorized to, or are prohibited from, taking the actions requested in your letter under both federal and state law. The actions described would disenfranchise those in question without due process." The same letter noted the list of names from the DOJ included voters from outside Los Angeles County, whom the office does not maintain any records on.

Both letters cited the National Voter Registration Act, a federal law that bars states from systematically removing ineligible voters from state voter rolls during the 90 days before an election. The law is supposed to prevent mistakes that could erroneously purge eligible voters right before an election without giving voters time to correct errors.

There are also questions about the methodology the Trump administration used to come up with its tally of 20,000 likely noncitizens and its accuracy. A July letter to California from the Department of Homeland Security alleged the state had a potential of 190,000 noncitizens on its rolls.

In Monday's press briefing, McCotter said the 20,000 figure represented the people the Justice Department had the most confidence were noncitizens after DHS cross-referenced various government databases and other records with identifying information.

McCotter and other DOJ officials blamed California for not handing over its entire voter roll — including partial Social Security Numbers and driver's license numbers — which they said could help shed more light on the citizenship status of these voters. So far 26 federal judges have dismissed DOJ demands for that data across the country.

In the Justice Department's Monday filing for a restraining order preventing California from counting ballots from the 20,000 individuals, the DOJ wrote: "Once illegally cast ballots are counted and commingled with lawful votes, the resulting harm may be impossible to remedy. The urgency is heightened because of the fundamental right to vote and to have one's lawful vote counted without dilution."

A half dozen voting and civil rights organizations filed to intervene in the case last week to argue the DOJ's demands are unlawful.

Election experts have said the DOJ's lawsuit against California seems more about sending a political message or teeing up future challenges than winning this case in court, given that the constitution gives states the authority to administer elections.

"I expect this lawsuit to go nowhere," UCLA's Hasen wrote last week.