Justice Department Sues California to Hold Back Mail Ballots From 20,000 Voters It Calls Likely Noncitizens, Resting Its Case on the Supremacy Clause Alone

The Justice Department has sued California to stop it from counting mail ballots cast in the Nov. 3 midterm by more than 20,000 registered voters whom federal immigration officials say are likely noncitizens. The suit, filed Oct. 15 in federal court in Los Angeles, follows the 48-hour demand the department sent Tuesday, and its filing answers the question that letter left open: how the list was built.

That matters most to naturalized citizens and to people who became citizens automatically through a parent, because they are the voters a records match is most likely to flag by mistake. Neither group has done anything wrong, yet under the relief the department is seeking, their ballots would sit uncounted until the government is satisfied they are citizens.

How USCIS built the list

According to the complaint, USCIS bought California’s voter roster, which the state sells under its elections code, and ran it against the agency’s own records using third-party software. Analysts then checked for naturalization, possible derived citizenship, State Department records and Social Security death records, followed by a second-level review. High-confidence matches went to Homeland Security Investigations for further work. The complaint says the process was separate from SAVE, the DHS citizenship database at the center of the nationwide program a Washington judge struck down on Oct. 9.

That is more care than a bare database hit, and the department’s announcement quotes DHS Secretary Markwayne Mullin saying “even one noncitizen vote cancels out the ballot of an American citizen.” The same announcement calls the analysis preliminary and ongoing. The open question is the starting data. A voter file identifies people by name, address and similar details, not by alien number, so every match depends on linking two record systems that were never designed to talk to each other. Derived citizens are the hardest case: many never applied for a certificate of citizenship, so USCIS may hold an old green card file for them and nothing showing they became citizens.

Scale is the other question. California had 23,164,977 registered voters as of Sept. 4, according to the Secretary of State’s 60-day report, so the federal list amounts to less than one-tenth of one percent of the rolls, a calculation from those figures. ABC News reported that when Nevada reviewed 185 people DHS had flagged as possible noncitizens, all of them turned out to be citizens; that account comes from a single outlet and involves a different list and method.

A one-count case built on the Supremacy Clause

The complaint, United States v. California, names the state, Secretary of State Shirley Weber and Los Angeles County Registrar Dean Logan. It does not invoke the National Voter Registration Act or the Help America Vote Act. Its single claim is that California, by mailing ballots to people the federal government flagged and then counting them, is facilitating violations of 18 U.S.C. § 611, which makes it a crime for noncitizens to vote in federal elections, and is therefore preempted under the Supremacy Clause. It asks for a declaration to that effect and an injunction barring California from tabulating those ballots in federal races “until those individuals’ citizenship status can be verified.”

The Supreme Court held in 2015, in Armstrong v. Exceptional Child Center, that the Supremacy Clause gives private parties no cause of action, but the federal government has long sued states in equity to stop them from obstructing federal law, as in its immigration suits against Arizona in 2010 and California in 2018. The harder questions are practical. The complaint does not say who would verify citizenship or how fast, and California counts mail ballots for days after the election. California is also likely to argue that holding back a batch of ballots on a database match amounts to the kind of systematic removal federal law bars within 90 days of an election.

California officials called the department’s demand legally baseless, ABC News reported. Weber said the department’s efforts “serve only to cause chaos and fuel public distrust in our elections,” and Logan said his office would not open the encrypted thumb drive carrying the names because it did not consider the device a secure medium. The department says the state had months of notice and refused to act.

For anyone on the list who is in fact a noncitizen, the stakes reach well beyond one ballot: voting in violation of law is a ground of deportation and of inadmissibility under the Immigration and Nationality Act, with only a narrow exception for people who reasonably believed they were citizens.

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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