Justice Department Gives California 48 Hours to Set Aside Ballots of Suspected Noncitizens, Days After a Judge Voided Its Voter-Roll Checks

Days after a judge voided its nationwide voter-roll checks, the Justice Department is pressing California to set aside the mail ballots of suspected noncitizens, a move that puts naturalized citizens most at risk of being wrongly flagged.

The Justice Department has given California 48 hours to review a federal list of people it believes are noncitizens who were mailed ballots for the Nov. 3 midterm election, and to hold back their votes until their citizenship is confirmed. The letter, signed by Acting Deputy Attorney General Trent McCotter and sent Tuesday to Secretary of State Shirley Weber, says the department will seek emergency relief in court if the state does not comply, according to Reuters and the Associated Press, which both reviewed it.

Both outlets report the same three demands: stop sending ballots to anyone on the list until citizenship is verified, segregate ballots that listed voters have already returned, and do not count those ballots until citizenship is determined. The names were handed to Los Angeles County officials on a password-protected thumb drive, and AP reported that a similar letter went to the county registrar. “Allowing noncitizens to vote cancels citizen votes,” McCotter wrote. A department spokeswoman, Kiersten Pels, confirmed the letter to Reuters and said the department “will take all necessary legal action.” California officials did not answer requests for comment. Neither outlet reported how many names are on the list or how they were compiled, and the method is what decides who gets flagged.

A narrower tool after a broad one was struck down

On Oct. 9, Judge Sparkle L. Sooknanan of the federal district court in Washington vacated the department’s program of collecting state voter rolls, running them through the DHS SAVE citizenship database and telling states whom it considered noncitizens. She found that no statute authorized it and that the department had ignored the risk of flagging citizens. The California letter takes a narrower route, a list delivered to one county and backed by a lawsuit threat, and whether that distinction holds up is likely to be a judge’s first question.

Timing raises a second question. The National Voter Registration Act requires states to finish any program that systematically removes ineligible voters at least 90 days before a federal election, a deadline that passed on Aug. 5 for this cycle. The letter asks for segregated ballots, not struck names, and individual removals remain lawful. But holding back a batch of ballots on a database match resembles the systematic process the quiet period was written to stop, an argument California is likely to make.

Why naturalized citizens carry the risk

Federal citizenship checks lean heavily on Social Security records, which are not always updated after a person naturalizes. Sooknanan’s opinion cited a 2006 Social Security audit finding that about 3.3 million records, roughly 7 percent of those listing someone as a noncitizen, actually belonged to U.S. citizens. It also noted that in Travis County, Texas, about a quarter of possible noncitizen matches involved people who had already proven their citizenship.

The administration’s case is that any noncitizen ballot dilutes a lawful one, and it has made enforcement a priority: AP counts about 90 people charged with election misconduct this year, 50 of them accused of voting as noncitizens. Skeptics point to scale: Reuters found in September that states may have added more than 30,000 noncitizens to their rolls since 2000, mostly through clerical and software errors, without knowing how many voted. When DHS Secretary Markwayne Mullin told four states in July that as many as 250,000 noncitizens were registered there, Weber replied that she had “serious doubts about the reliability of your data and accuracy of your claims,” AP reported.

Green card holders dominate the latest prosecutions

The department’s Oct. 12 announcement of charges against 16 people in nine states shows who ends up in these cases. Eleven are described as lawful permanent residents, several accused of voting for years. Of the rest, one is a naturalized citizen accused of voting before she naturalized, one overstayed a Visa Waiver entry, one is described as being in the country illegally, and two have no nationality listed.

For a green card holder, the immigration stakes outlast the sentence. Voting in violation of law is a ground of deportation under section 237(a)(6) of the Immigration and Nationality Act and a ground of inadmissibility under section 212(a)(10)(D). The only exception is narrow: each parent must be or have been a citizen, the person must have lived in the United States before age 16, and the belief in citizenship must have been reasonable. For the naturalized defendant, the charge of unlawfully procuring citizenship carries a further consequence, because federal law requires a court to revoke the citizenship of anyone convicted under that statute.

This article is for general information and is not legal advice.

Sources

Vasanth Vaidyanathan, Esq.

Administrator

Vasanth Vaidyanathan is an immigration attorney with over 20 years of experience focused exclusively on U.S. immigration and nationality law. He holds a LL.M. from California Western School of Law, San Deigo and advises individuals and businesses on employment and family-based immigration matters, including H-1B, PERM, EB categories, and adjustment of status. He has also been a featured speaker at immigration seminars across the U.S. To reach Vasanth visit: https://www.vnathan.com/

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