President Donald Trump has threatened California election officials with lengthy prison sentences if they count ballots from voters his administration has identified as possible noncitizens, escalating a dispute that has already reached federal court. The Justice Department has gone beyond asking a court to stop counting certain ballots and has warned election officials about possible criminal liability.
Legal experts told Newsweek that actually putting an election official in prison would require prosecutors to prove much more than what the disputed federal list establishes, including that an official knowingly and intentionally helped someone vote illegally.
“They will all go to jail for a long period of time!!!” Trump wrote on Truth Social after sharing a Justice Department letter warning California officials about potential criminal exposure.
The letter said officials who “knowingly tabulate” ballots cast by people federal agencies identify as noncitizens could risk becoming “aiders and abettors to a federal crime.”
The confrontation centers on more than 20,000 people the federal government says are likely noncitizens who were sent California vote-by-mail ballots. On October 15, the Justice Department sued California, asking a federal court to stop the state from tabulating mail ballots from people on the list until it could determine their citizenship.
The department's own public announcement describes them as “likely” noncitizens and says the federal analysis and review remain ongoing.
...
Could California Election Officials Really Go to Jail?
In theory, an election official could face prosecution for intentionally assisting a federal election crime. But Michael T. van der Veen, a criminal defense attorney who represented Trump during his second impeachment trial, told Newsweek that prosecutors would first have to identify a criminal offense and prove each required element beyond a reasonable doubt.
“The Justice Department’s warning isn't the same as proving criminal liability,” van der Veen said. “Noncitizens may not vote in federal elections, but identifying someone as a likely noncitizen doesn't mean that an election official committed a crime by processing that person’s ballot. Whether prosecutors can prove the officials facilitated unlawful voting rather than carrying out their election-administration duties is the real question.”
Mark Graber, a Regents Professor in the University System of Maryland and constitutional law scholar, agreed that criminal prosecution is theoretically possible under the federal aiding-and-abetting statute, 18 U.S.C. § 2. The University of Maryland describes Graber as a leading scholar on constitutional law and politics.
Graber said prosecutors would have to show that an official counted the vote of someone the official knew was not eligible to vote.
“If the voter's status is disputed, the official could not have known that the voter is a noncitizen,” Graber told Newsweek.
What Prosecutors Would Have to Prove
The Justice Department's criminal warning invokes two federal statutes: 18 U.S.C. § 611, concerning noncitizen voting in federal elections, and 18 U.S.C. § 2, the federal aiding-and-abetting statute. Acting Deputy Attorney General Trent McCotter told California officials that knowingly tabulating the ballots at issue could expose them to liability as aiders and abettors.
Van der Veen said an aiding-and-abetting prosecution would require the government to prove the underlying crime occurred, that an election official took affirmative action to assist it, and that the official intended to facilitate the crime.
“It is not enough to show that an official’s actions inadvertently helped someone else commit an offense as there needs to be evidence that the official knowingly participated in the unlawful conduct and acted with the intent to help it succeed,” van der Veen said.
That makes the potential criminal theory different from the case already filed against California. The Justice Department filed a lawsuit to stop the state from counting specified mail ballots until officials determine voters' citizenship status. DOJ says federal officials analyzed voter-registration records and used multiple data-enrichment and verification methods to assess whether the people identified were likely noncitizens.
The Justice Department argued separately in its criminal warning that California election officials received “actual notice of noncitizen voting” after receiving the federal list, according to Democracy Docket's report on the October 16 letter.
Why 'Knowingly' Could Be the Biggest Legal Hurdle
David Froomkin, an assistant professor of law at the University of Houston Law Center who teaches election law, criminal law, and constitutional design, told Newsweek that criminal liability would require knowing a voter was ineligible, not merely noticing that federal authorities suspected it.
“This is not a serious legal claim. These criminal laws require a knowing violation of the rules about voter eligibility,” Froomkin said.
“Conceivably an election official could be liable as an accomplice if they knowingly facilitated voting by someone whom they knew to be ineligible to vote, but that is clearly not what is going on here,” he added.
Graber similarly called the knowledge requirement “crucial.”
“Receiving a federal list declaring someone a noncitizen would be evidence, but an official could respond that he or she believed the list to be inaccurate or that they had independent evidence that the voter was a citizen,” Graber said.
Van der Veen also distinguished between a list that raises questions about someone's citizenship and proof that an election official knowingly assisted an ineligible voter.
“A federal list identifying people as ‘likely noncitizens’ could spark further investigation, but it won't prove that the individuals are ineligible to vote or that an election official knew a particular person was ineligible,” he said.
“The government would need to have relevant facts which could include communications, records or anything showing advance knowledge of unlawful voting/ intent to assist it. A general notice or an unverified list is not proof of criminal intent.”
Why California Refused the Justice Department's Demand
California Secretary of State Shirley Weber wrote that DHS told her office in July that more than 190,000 registered California voters “may be” noncitizens. Weber said she asked for information about the underlying data and methodology so the state could try to verify the allegation, but that DHS officials declined to provide the requested information in writing.
The Justice Department later told California officials that it had identified approximately 20,000 people as likely noncitizens and demanded that the state take steps regarding their mail ballots. Weber objected that voting was already underway and said federal officials had still not explained to her satisfaction the basis for identifying the voters.
“As you fully acknowledge, ballots have already been delivered to voters and voting is well underway,” Weber wrote. “Despite this, and with less than three weeks before the election, you are demanding unprecedented measures that threaten thousands of Californians' right to vote, based on unverifiable information or methodology that you still fail to explain or provide.”
Weber also invoked the National Voter Registration Act's restrictions on systematic voter-roll removals within 90 days of a federal election and maintained that the measures demanded by DOJ conflicted with federal and state law.
Los Angeles County Registrar-Recorder/County Clerk Dean C. Logan has raised similar objections.
“The Department of Justice has not provided the underlying evidence, source, or methodology supporting its assertions that individuals identified in its records are ineligible to vote,” Logan said in an October 15 statement. “We cannot withhold or refuse to count ballots based solely on unverified allegations, nor can we disregard the legal requirements governing our election.”
Logan also said the list supplied to Los Angeles County included individuals elsewhere in California, meaning the county did not have authority over all the records DOJ had identified.
DOJ and DHS Defend the California Voter Review
The Trump administration disputes California's objections to its voter analysis.
The Justice Department says Homeland Security Investigations and federal partners analyzed publicly available voter-registration records to identify potential indications that noncitizens might have registered, voted or received election-related mail. DOJ said federal officials used multiple data-enrichment and verification methods to assess the people identified.
A DHS spokesperson told Newsweek that the department cross-referenced publicly available state voter-registration data with known aliens in federal systems and used multiple sources, including government and commercial third-party data, to supplement those records, further verify identities, and eliminate false positives.
“Claims that USCIS used ‘third-party software’ to conduct the analysis are FALSE,” the spokesperson said. “As described by FDNS, HSI and the DOJ, multiple data sources, including government data sources and commercial third-party data, were used to supplement the public data, enable further verification of identity of the registrants, and to eliminate false positives.”
The spokesperson said 190,000 remained DHS' figure for potential noncitizens registered to vote in California, while the approximately 20,000 referenced by DOJ were a subset that DHS said had gone through manual verification.
“Our message to aliens who vote in American elections is clear: we will find you, arrest you, and you will face the consequences — including criminal charges and deportation,” the spokesperson said.
The Justice Department has not publicly characterized all of the more than 20,000 people as conclusively established noncitizens. Its October 15 announcement repeatedly calls them “likely” noncitizens, and DHS Secretary Markwayne Mullin said the analysis and review remained ongoing.
Election Law Experts Question Trump's Jail Threat
Froomkin said states have federal obligations to update their voter rolls but argued that officials cannot treat suspicion alone as definitive proof that a registered voter is ineligible.
“Unless the state has an individualized reason to believe that a particular voter erroneously registered to vote, it has an obligation to permit that voter to exercise their constitutional right to vote,” Froomkin told Newsweek.
He added that if someone were later determined to have voted despite being ineligible, prosecutors could investigate whether a voter-fraud offense occurred.
Froomkin also questioned the reliability of the federal government's methods for identifying suspected noncitizens. Weber likewise challenged the reliability of federal citizenship records in her response to DOJ, pointing to an October 9 federal court decision that she said described the government's records as “known to be unreliable."
Samantha Trepel, Rule of Law program director at the States United Democracy Center, separately criticized the administration's actions in an attributable statement to Newsweek.
“The Justice Department has a responsibility to enforce the law based on evidence. Instead, DOJ is using the threat of investigations and criminal prosecution to intimidate state election officials who are just doing their jobs,” Trepel said.
“Noncitizen voting is already illegal and exceedingly rare. The Trump administration’s recent actions in California are yet another attempt by the federal government to interfere with how states run our elections,” she added. “They’re trying to undermine confidence in our elections and create doubt about results before voters even cast their ballots.”
Could Trump's Jail Threat Actually Happen?
Graber said the Justice Department would need independent evidence showing that an official knew the voter involved was a noncitizen.
Asked how realistic Trump's imprisonment threat was based on publicly available information, Graber answered: “Political puffery.”
Van der Veen stopped short of ruling out criminal liability but also emphasized what prosecutors would first have to establish.
“The big factor is whether officials were following lawful verification and ballot processing requirements in the midst of unresolved questions about voter eligibility,” he said. “If eligibility is still in question, prosecutors would face questions about proving knowledge and intent.”
Asked what would be necessary for an election official actually to be imprisoned, van der Veen said: “Prison is a possible penalty for a proven federal crime, but a presidential statement means someone has committed one. Prosecutors would need to secure each piece of evidence supporting each element of the offense and have a court impose a prison sentence for an election official to be imprisoned.”
As of October 19, the DOJ has publicly announced civil litigation against California to stop specified mail ballots from being tabulated pending citizenship verification.
Newsweek’s reporters and editors used Martyn, our AI assistant, to produce this story. Learn more about Martyn here. Contact Newsweek editors on this story: Steve Mollman and Edward T. Cummins