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The Trump administration’s latest legal assault on California’s elections is raising new concerns about whether the White House is laying groundwork for attempts to challenge the results of the rapidly approaching midterms.
Less than three weeks before Election Day, the Justice Department filed an unusual lawsuit against California that asks a federal judge to set aside as many as 20,000 ballots the federal government claims could be cast by ineligible noncitizen voters. The Trump administration followed up with a letter threatening to prosecute election officials who count votes from potential noncitizens for being “aiders and abettors to a federal crime.”
“This is the first time the Trump administration has tried to take action to sequester ballots that are live ballots — and that’s unusual,” said Stephen Richer, a former Republican registrar in Arizona who now works as a legal fellow at the libertarian think tank Cato Institute. “The fact that this action was taken while this election is underway charts new territory for this administration.”
The move has raised alarms among voting rights groups, but several legal experts questioned whether courts would be willing to support the federal government’s request to segregate the ballots.
Michael Morley, an election law expert at the Florida State University College of Law, predicted that the lawsuit would get no traction and that the Justice Department would be unable to intervene in the normal counting process in California.
“If the Trump Administration were attempting to weaponize federal law in an effort to steal an election, California seems like one of the last places that would occur, since you’re not going to be able to challenge or reject enough votes to swing federal races to Republican majorities,” he said.
The dispute centers on the Trump administration’s repeated claims that California’s voter rolls contain tens of thousands of noncitizens who are ineligible to vote. In July, federal officials said they had found more than 190,000 potential noncitizens on California voter rolls and directed the state to scrub any ineligible people from the system.
The Trump administration never provided the state with the list of 190,000 potential noncitizens on the voter rolls. State officials and voting right advocates questioned the administration’s numbers and noted that a check of the administration’s estimated noncitizen voter numbers in other states, such as Nevada, had proven that few, if any, of the names on the list turned out to be noncitizens and raised questions about the administration’s methodology.
Earlier this week, the Justice Department sent Los Angeles County election officials an unusual package: an unsolicited thumb drive said to contain the names of 20,000 people the Trump administration claimed were noncitizens on California voter rolls. It isn’t clear why they sent the information to Los Angeles County, or how the administration’s number of potential noncitizens on the state’s rolls fell from more than 190,000 to 20,000.
The thumb drive came with letters to county and state officials demanding that California investigate the names within 48 hours or face legal action. And, most unusually, the Los Angeles letter contained a baby blue sticky note with the password to access the thumb drive — not a particularly secure way for government officials to share sensitive information.
California officials, who are in the midst of overseeing early voting across the state, rebuffed the Justice Department request.
Los Angeles County Clerk Dean Logan said he did not consider the thumb drive a secure medium and told the Justice Department that privacy and information security protocols made it impossible for his office to access the information. California Secretary of State Shirley Weber also pushed back on the Trump administration effort. The Justice Department followed up last week by providing Los Angeles County with a spreadsheet containing the names, dates of birth, and addresses of the 20,000 people, which Los Angeles officials said appeared to include names from residents across the state, not just Los Angeles County.
On Thursday, almost as soon as the 48-hour deadline had passed, the Justice Department filed its lawsuit. Federal officials are asking a federal judge to compel California to segregate the ballots of any of the 20,000 people on the list who vote in the November election.
Along with the lawsuit, Trump administration officials launched into a public feud with California officials. U.S. Attorney General Todd Blanche and Bill Essayli, the top federal prosecutor in Los Angeles, castigated the state for not heeding its demands.
“Make no mistake,” Essayli wrote on X. “California has no interest in protecting the integrity of its elections.”
In a statement, California Gov. Gavin Newsom called the lawsuit “a totally unprecedented request that should scare the hell out of every American,” and expressed confidence the federal lawsuit would be rebuffed.
“The courts have made clear that the federal government has no role in how a state carries out its election process, and now, in the middle of Californians voting, they have asked local officials — who do a damn good job defending democracy — to violate federal law,” Newsom said.
Dispute will play out in court
The issue will now play out in the courts. On Monday, the Justice Department asked a federal judge to move quickly to order California election officials to separate any ballots cast by the 20,000 people on the list, a rush effort to get the court to act before Election Day.
In parallel, the Justice Department announced the arrests Monday of 28 green card holders in California accused of illegally registering to vote and, in most cases, voting. The arrests were part of a new campaign dubbed “Operation Protect the Vote,” which involves U.S. attorneys’ offices across California.
“Every illegal vote cancels out the vote of a lawful American citizen,” said Acting Deputy Attorney General Trent McCotter. “Each of the 28 defendants charged today appears on the list of more than 20,000 likely noncitizen registrants we provided to California election officials last week. California refused to look at that list. Today’s charges show exactly what that refusal puts at risk. California must verify the citizenship of those more than 20,000 registrants before mail-in ballots are counted.”
The White House and Justice Department did not respond to requests for comment. The Trump administration has prioritized prosecuting noncitizen voters, though experts say, and audits have found, that such cases are rare.
Over the weekend, “60 Minutes” ran a piece on election concerns featuring Harmeet Dhillon, the assistant attorney general for civil rights, who said that the Justice Department would not try to nullify any election based on a potential noncitizen voter.
Pressed by correspondent Lesley Stahl, Dhillon said a potential noncitizen vote “would lead to the person’s vote being challenged, but not the entire election,” and said that “absent some shocking contingency that is unexpected, there should be no interruption in the usual course of counting and certifying (election) results in the states. ”
David Becker, a former Justice Department voting rights attorney who now leads the Center for Election Innovation and Research, said the Trump administration lawsuit cut against a longstanding practice of avoiding election-related investigations immediately before an election, particularly when those actions could disrupt voting or undermine public confidence.
“It should trouble most of us,” Becker said. “They appear to have intentionally gamed the system to wait until the last minute to cause the most chaos in California.”
Richer said the Trump administration’s actions opened a Pandora’s box of concerns, such as whether the federal government could secure a warrant or subpoena to seize ballots during the counting process, a move election officials fear could invalidate the votes and throw the results into question.
Richard Hasen, an election law professor at UCLA and director of its Safeguarding Democracy Project, predicted that the courts would rebuff the Trump administration effort. He said it was possible the White House could ultimately try to seize ballots, but thought that seemed unlikely to go anywhere.
“I continue to believe that the biggest variable on how aggressive the Justice Department will be is whether control of either house of Congress is at stake,” he said.
On Friday, three U.S. senators, led by California Democrat Alex Padilla, a former secretary of state, asked Blanche to make an immediate public commitment not to seize ballots.
“The law is clear: neither the Department nor any other federal agency has the authority to disrupt the administration of an election, including by seizing ballots or other election materials in a manner that prevents state and local officials from carrying out their lawful duties,” the senators wrote in a letter to Blanche.
Richer predicted that courts would reject attempts by the Trump administration to seize ballots, but said the government was creating a lot of uncertainty in the run up to Election Day.
“Do I think there are noncitizens on California voter rolls?” he asked. “Yes. Do I think it is actually a decent number? Yes. Do I think that makes up a meaningful percentage? No. Do I think this is a productive way of going about having a conversation about that? No.”
Dion Nissenbaum is Votebeat’s senior national reporter and is based in Houston. Contact Dion at dnissenbaum@votebeat.org.
