WASHINGTON — The Justice Department on Sunday defended the accuracy of its list of more than 20,000 Californians it says are suspected noncitizen voters, and asked a federal judge in Washington to consider whether an immigrant rights group and its lawyers should face contempt proceedings after they published an analysis challenging that list. The filing landed one day before the November 3 midterm elections, in the middle of a fast-moving series of court fights over ballots, voter rolls and the federal government’s role in elections run by the states.
The dispute centers on a list the department compiled from California voter registration records matched against federal citizenship data. The administration says the list identifies people registered to vote who may not be United States citizens, and it has pressed California election officials to set those voters’ ballots aside for extra scrutiny. California officials say the list is riddled with errors and cannot lawfully be used to remove voters or hold up ballots in the final days before an election. What began as a disagreement over data has now become a second fight, over whether the group that tested the list broke a judge’s order by publishing what it found.
The sequence unfolded over three days in a Washington courtroom. On Friday, October 30, Chief Judge James Boasberg of the United States District Court for the District of Columbia gave the Coalition for Humane Immigrant Rights, known as CHIRLA, access to federal data behind the list so the group could argue that it has legal standing to challenge the government’s use of it. Boasberg set strict conditions: the group’s lawyers could not disclose any names from the list, and the data could be used only for arguments about standing, not for a public report on the list’s accuracy.
On Saturday, October 31, CHIRLA’s lawyers filed court papers containing an analysis of the list performed by two data analysts working with the University of California, Los Angeles Voting Rights Project, which represents the group. The analysis found that more than 40 percent of the people on the list — over 4 in 10 of the 20,930 names examined — do not appear in California’s voter file at all. It also identified 22 people on the list who were likely naturalized United States citizens, and said thousands more citizens appeared to be flagged. The United States attorney in Los Angeles publicly called the analysis “bogus,” according to Associated Press reporting.
The Justice Department fired back on Sunday. In its filing, the department said the analysis had nothing to do with whether CHIRLA has standing to bring its case, and therefore violated Boasberg’s order limiting the data’s use. The filing described the report as “political grandstanding” about alleged inaccuracies affecting California voters generally, and said comparisons between the government’s list and the full California voter file had no relevance to whether the particular plaintiffs in the case have standing. The department suggested that Boasberg refer the matter to the Justice Department itself for investigation into possible criminal contempt of court.
CHIRLA’s side rejected that account. Alberto Lammers, a spokesman for the UCLA Voting Rights Project, said in an emailed statement that the plaintiffs’ counsel and their experts “fully complied with the Court’s orders.” That disagreement — over whether a court-authorized review of data may be written up and filed publicly when the filing goes beyond the narrow question it was authorized to answer — is now itself before Boasberg, who has not yet ruled on the department’s suggestion.
Why the California voter list accuracy dispute matters before Election Day
The contempt question sits on top of a larger and unresolved argument about whether the list is reliable. The administration says it was carefully built from the state’s own voter registration data and checked against federal citizenship records. California election officials argue the opposite: that the list is highly unreliable, that it probably sweeps in many citizens, and that the state has no lawful way to do the painstaking, voter-by-voter work required to remove anyone from the rolls in the days before an election. In a separate court filing, the state told a federal court that about 1 in 4 people on the list were born in the United States, according to reporting on the litigation.
People attest to being United States citizens when they register to vote, and casting a ballot while ineligible carries a risk of felony prosecution. Documented cases of noncitizens voting are rare: a Reuters investigation in July found 129 federal charges arising from such cases. Critics of the department’s campaign argue that the rarity of proven cases makes sweeping pre-election demands disproportionate, while the department argues that protecting lawful votes requires acting on the records it has, even close to an election. Both claims are now being tested in court rather than settled by agreement between the governments involved.
The department’s pressure campaign has extended well beyond a single list. It sent letters to election officials in 57 of California’s 58 counties. One letter, dated October 22 and sent to San Bernardino County, attached a list of what it called 1,133 “likely aliens” registered to vote there and asked officials to set aside, rather than cancel, mail ballots from people whose citizenship could not be confirmed. The department also issued subpoenas to Los Angeles County election officials, and federal prosecutors warned officials who knowingly let noncitizens vote that they could face criminal charges. According to Associated Press reporting, several election officials were directed to appear before a federal grand jury on November 4, the day after the election. A subpoena does not establish that any official committed a crime.
Homeland Security Secretary Markwayne Mullin added a national dimension to the dispute in an interview released on October 30, saying that the number of noncitizens on voter rolls nationwide could exceed 300,000, up from an earlier figure of 250,000. That estimate has not been published with supporting methodology in the reporting reviewed, and it should be read as an administration claim, not as a verified count. Reuters has reported that the administration has acknowledged sending letters about alleged noncitizen voters to officials in five states: California, Washington, New Jersey, Pennsylvania and Nevada. The lists themselves have not been made public, and critics warn they could be used to contest results after votes are counted.
How the Thompson order and the Monday hearing fit the same fight
The Boasberg case is only one front. In a separate case, the Justice Department on Sunday also appealed a ruling from Friday night by United States District Judge Trina L. Thompson in San Francisco. Thompson’s temporary restraining order bars the Justice Department and the Department of Homeland Security from demanding that election offices remove possible noncitizens from voter rolls, separate their ballots or halt ballot processing, and from threatening officials with criminal prosecution for refusing such demands. The order runs through November 16, and a hearing on the appeal was set for Monday, November 2, the day before the election.
Thompson ruled that the plaintiffs — labor unions representing election workers and civil rights groups — had shown they were likely to succeed on claims that the administration’s threats violated the Voting Rights Act and exceeded federal authority, since states run congressional elections under the Constitution. The department has noted that Thompson ruled before the federal government was able to file its initial arguments, and it is asking the appeals court to intervene. The order is temporary, not a final judgment, and the Monday hearing will not by itself settle the underlying legal questions.
Just days earlier, a three-judge panel of the United States Court of Appeals for the Ninth Circuit split 2-1 in rejecting the department’s emergency request to force California to separate the disputed ballots from the count. The majority found that the specific emergency order requested was not legally justified, while the dissent would have intervened. The administration has said it may seek Supreme Court intervention, although no new emergency application had been confirmed in the reporting reviewed. A separate federal judge in California had earlier rejected the department’s demand to set aside the ballots, writing that such last-minute orders could “wreak havoc” on the state’s election.
The litigation has also spread to other states. In Washington state, the department sent a list of more than 400 names; Secretary of State Steve Hobbs says the list includes citizens and people who are not registered in the state at all. Three organizations sued on Friday to stop ballots from being set aside there, and federal monitors are due in King and Yakima counties. On Sunday, a federal judge in Alaska dismissed the department’s lawsuit seeking to segregate ballots and delay certification of the Alaska Senate race, and the department appealed the same day. That Alaska dismissal and appeal are the subject of a separate USN report, and they illustrate how the same legal strategy is being pursued on several fronts at once.
What to watch as the California voter list fight reaches the courts
Three questions will decide how much of this matters after Tuesday. The first is whether Boasberg treats the CHIRLA analysis as a violation of his order, and whether he refers anything for a contempt investigation — a step the department suggested but which the judge has not taken. A contempt referral would be a serious escalation in a case that began as a dispute over standing, and it would raise its own questions, since the referral would go to the very department that asked for it.
The second is what the appeals court does with the Thompson order, and whether any ruling before or just after the election changes what election offices may be told to do while ballots are still being processed. Because the order runs to November 16, well past Election Day, its fate will matter during the counting and certification period, not only on Tuesday itself.
The third is the underlying accuracy question, which neither side’s court filing has settled. The UCLA analysis says a large share of the list cannot be found in the voter file and that citizens are flagged; the department says the analysis is irrelevant and misleading, and stands by its matching method. Until a court tests the matching itself, voters and election officials are left with two incompatible accounts of the same list, and with an election arriving before either account has been proven. That uncertainty — over a list, a court order and a contempt threat, all landing in the final 48 hours — is why this dispute, which began as a data-matching exercise, has become one of the most closely watched legal fights of the midterm’s final weekend.
Sources
USN reviewed reporting from multiple outlets for this story. Read more from La Nacion, KCAU 9 and Political.org.