On Friday, the U.S. Department of Justice (DOJ) sent a letter to the California Secretary of State and Los Angeles County threatening criminal penalties against the Secretary and County Registrar for their decision to tabulate ballots in compliance with state and federal law. The letter came just one day after DOJ’s lawsuit alleging a Supremacy Clause violation based on the claim that California and Los Angeles are “knowingly sending vote-by-mail ballots to likely noncitizens and ultimately counting those ballots,” purportedly in violation of 18 U.S.C. § 611, the federal law that criminalizes noncitizen voting in federal elections.
The lawsuit and especially the letter’s threat of criminal liability are chilling, and all the more so because they come from the number two official at DOJ, the Acting Deputy Attorney General. He notably sent the letter a mere 17 days before Election Day, and more than two weeks after Los Angeles County began mailing ballots to registered voters. The lawsuit and letter also mark the inversion of the DOJ’s traditional and decades-old role when it comes to elections: ensuring access to ballots prior to elections, and prosecuting election crimes only after elections are certified. Indeed, DOJ’s general policy was to avoid taking any overt investigative steps until after an election had concluded to “minimize[] the likelihood that the investigation itself may become a factor in the election.”
DOJ’s clear threat of prosecution is transparently about intimidating the public servants in the California Secretary of State’s Office and Los Angeles County Registrar’s Office. The timing and content of the threat belie any suggestion that the DOJ is simply offering a legitimate note of caution. Indeed, that the letter and DOJ’s lawsuit were not signed by a single career attorney underscores the point that DOJ’s theory—whether in the civil or criminal context—suffers from several substantial defects.
On the criminal side, among the most significant hurdles DOJ prosecutors face is proving intent. The federal aiding and abetting statute, 18 U.S.C. § 2, requires the government to prove that an election official “intends to facilitate” the alleged noncitizen voting, or “‘participate in [the crime] as in something that he wishes to bring about’ and ‘seek by his action to make it succeed,’” according the U.S. Supreme Court. Or, as explained in the Ninth Circuit’s model jury instructions, “[i]t is not enough that the defendant . . . unknowingly or unintentionally did things that were helpful” to the commission of a crime. “The evidence must show beyond a reasonable doubt that the defendant acted with the knowledge and intention of helping” the crime’s commission (emphasis added).
California election officials’ words and actions demonstrate that DOJ cannot prove intent here, and, indeed, that’s due to the absence of any underlying criminal conduct. When, in July, DHS made unsubstantiated claims that California had 190,000 noncitizens on its voter rolls, the California Secretary of State requested information about the agency’s methodology and sources. DHS declined to provide any of the requested information in writing. Meanwhile, another targeted state, Nevada, agreed to a verbal briefing. But a recording of that conversation provided little reason to believe that the agency’s methods or sources were reliable.
Then, after months of silence from the agency, on Oct. 13, 2026, DOJ sent LA County a USB drive containing what it alleged were the names of more than 20,000 individuals whom DOJ “reasonably believe[s] are likely” noncitizens registered to vote in the state (not just the County)—again providing no information about methodology and sources of this data. “Reasonably believes are likely” is a conspicuously low standard of “proof.” Notably, DOJ provided this list after the County had placed ballots in the mail—so even assuming the individuals listed were in fact noncitizens who planned to vote unlawfully in the County—DOJ’s timing ensured that election officials did not have access to DOJ’s list, let alone any substantiating federal data, at the time they mailed the ballots. The conspicuously late timing also meant that DOJ sent this information and accompanying demand within the 90 day period in which federal law bars California from implementing “any program the purpose of which is to systematically remove the names of ineligible voters from the official lists of eligible voters.”
Nonetheless, along with the list, DOJ issued an ultimatum: investigate the citizenship of each of the 20,000+ individuals within 48 hours or face the lawsuit DOJ promptly filed. In response, California and the County emphasized they would follow the law regarding verification procedures. Both state and federal laws tightly prescribe procedures and timing for removing registered voters from the voter rolls, and for good reason: removing a registered voter so close in time to an election and without proper safeguards risks disenfranchising people.
All of this points to a fundamental problem for DOJ’s theory of criminal liability. The election officials here decided to follow longstanding state and federal law rather than ceding to unprecedented demands unsupported by the requested evidence. That decision demonstrates adherence to the law—not criminal intent. Any prosecution for facilitating an election or related federal crime would require proof of criminal intent; so a clear lack of evidence on this element undermines any other criminal charges DOJ may consider, not just aiding and abetting 18 U.S.C. § 611 violations.
Nor is intent the only roadblock DOJ prosecutors would face. And some of those problems are unambiguously of DOJ’s own making. For example, DOJ’s choice to send the list of purported noncitizens after mail ballots were sent creates yet another flaw in its theory of the case. To aid and abet a violation of 18 U.S.C. § 611, DOJ would have to prove that an election official acted in furtherance of the crime before the crime was completed. Under California law, county clerks had to begin mailing ballots by Oct. 5 and had five days to send ballots to all voters registered at that point. Because DOJ failed to provide any meaningful information to the Registrar before the ballots were sent, DOJ cannot prove that officials sent the ballots with “advance knowledge” of the supposed crime here, which occurs when a noncitizen mails back a ballot.
Over the course of this administration, DOJ, in coordination with the Department of Homeland Security and others, has focused its enforcement efforts on the exceedingly rare issue of noncitizen voting. The current threat of prosecution represents yet another escalation of this effort to portray noncitizen voting as a widespread problem, which the evidence does not support. For now, the administration is focused on California and Los Angeles County, but the administration could soon turn its attention to other jurisdictions. Any prosecution based on a similar lack of evidence would likely fail. But that does not detract from the danger it poses—an unsupported prosecution exacts a high cost in time, resources, and emotional energy. It also sows doubt and fear in U.S. elections. Even the issuance of an ultimately empty threat is dangerous to the functioning of the democratic election system and deeply unfair to the hardworking state and local election officials who keep it running.
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