California Noncitizen Ballots: DOJ Gives Counties 48 Hours

The fight over California noncitizen ballots spread from Los Angeles to county election offices across the state on Oct. 23, when federal prosecutors sent letters ordering county registrars to identify, set aside and verify, within 48 hours, the ballots of voters on a Justice Department list of suspected noncitizens. At least 18 counties received the letters, the Los Angeles County registrar’s office told the Associated Press, and Bill Essayli, the first assistant U.S. attorney in Los Angeles, told NBC4 that every county got one. The letters ask for each flagged voter’s Social Security number, identification details and a copy of the registration, and they direct counties to sequester any ballot whose citizenship cannot be confirmed, the AP reported.

Until this week the department’s pressure ran mainly through Los Angeles County and the secretary of state, the two defendants in its Oct. 15 lawsuit over about 20,000 flagged voters. The new letters reach registrars in counties that are parties to no case and hold no court order telling them what to do. They arrive while ballots are being opened: state filings put the number of mail ballots already counted above 330,000, according to the AP, and Election Day is Nov. 3. “Any election official who knowingly processes the ballot of a noncitizen is opening themselves to legal jeopardy,” Essayli said, according to the AP, and on X he wrote that “knowingly processing noncitizen ballots is a federal crime.”

The word that carries the threat

News reports on the letters cite no statute. Two federal laws are the likely candidates. 18 U.S.C. 611 makes it a crime for a noncitizen to vote in a federal election, and it applies to the voter, not the person who counts the ballot. 52 U.S.C. 20511 does reach election officials, punishing anyone who knowingly and willfully deprives residents of a fair election by tabulating ballots “known” to be materially false or fraudulent under state law, with up to five years in prison. The same section also punishes knowingly intimidating anyone for registering or voting.

Knowledge is where the government’s theory will be tested. A name on a federal list of “likely” noncitizens is an allegation built from immigration records that can miss a later naturalization. Los Angeles County’s own sample of the list found people who reported a U.S. birthplace. Whether receiving such a list turns a registrar’s routine count into knowing conduct is an untested question, and the warning is likely to shape what county offices do before any court answers it.

California’s secretary of state and the Los Angeles registrar oppose the demands. State lawyers argue in court filings that the requests could delay certification, rely on unreliable federal data and risk disenfranchising citizens, the AP reported. The Los Angeles registrar has also said under oath that an opened ballot cannot be traced back to its voter, as covered in the department’s appeal to the Ninth Circuit.

What the numbers show about the list

San Bernardino County’s letter says 1,133 people on the list are registered there, the AP reported, about 5.7 percent of the roughly 20,000 names, based on those two figures. That spread explains why the department now needs every county. On the criminal side, prosecutors charged 28 people on Oct. 19, and the Justice Department’s announcement says all 28 are lawful permanent residents, several accused of false statements on naturalization paperwork. Twenty-eight is about 0.14 percent of the 20,000 names, a calculation from the department’s own figures.

The people with the most at stake are not the 28 defendants but naturalized and derived citizens whose immigration files never caught up with their citizenship. For them, a sequestered ballot would mean proving citizenship to have a vote counted, a burden native-born voters do not face. For green card holders who did register, the exposure is larger than a lost ballot: a false claim of citizenship to register or vote can make a noncitizen deportable and permanently inadmissible.

Courts are moving on a weekend clock

The U.S. Court of Appeals for the Ninth Circuit ordered California late Friday to respond by noon Saturday, Oct. 24, to the department’s emergency request to hold the flagged ballots, Fox News reported; the court has not ruled on the merits. U.S. District Judge David O. Carter’s hearing on the government’s restraining order request remains set for Tuesday, Oct. 27. The 48-hour window closes before either court is likely to speak, so registrars must first choose for themselves whether to comply, refuse or wait. A ruling for the government would give the letters legal force statewide; a loss would leave the criminal warning as its main lever, with days left before the election.

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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