Noncitizen Voting Lawsuit: Judge Wants DOJ's State List

A federal judge in Washington has given the Justice Department until Friday to name the states it has warned about noncitizens on their voter rolls, and plans to rule by Monday on whether those warnings can continue before the Nov. 3 election.

In a noncitizen voting lawsuit brought by congressional Democrats, Chief Judge James E. Boasberg of the U.S. District Court for the District of Columbia on Oct. 29 ordered the Trump administration to identify every state where it has pressed officials to act against suspected noncitizen voters, the Associated Press reported. He told the government to turn over its list of Justice Department letter recipients by Friday and said he intends to rule by Monday, Nov. 2, the eve of Election Day. The case, DSCC v. Trump, asks the court to stop federal officials from directing election offices to remove specific voters, hold back ballots or set ballots aside.

The stakes reach beyond the parties. Federal lists of suspected noncitizen voters lean on immigration records, and naturalized citizens, whose files show years as noncitizens, are the people most exposed to a wrong flag. That is the core claim of a separate suit against the USCIS Unlawful Voter Initiative filed Oct. 28. Boasberg’s ruling will shape how hard Washington can push county election offices in the last days of a midterm count.

What the Justice Department letters ask states to do

Senate Minority Leader Chuck Schumer, House Minority Leader Hakeem Jeffries and the Democrats’ Senate, House and governors’ committees sued on Oct. 20, naming the President, the Justice Department, DHS and their leaders. Their emergency motion argues the campaign has no basis in federal law and commandeers state officials in violation of the Tenth Amendment.

The government’s own court filing lays out the sequence. On July 16, Homeland Security Secretary Markwayne Mullin wrote to California, Nevada and Pennsylvania citing a preliminary review that found “several thousand noncitizens” on each state’s rolls. All three declined and asked for more information. On Oct. 13, Acting Deputy Attorney General Trent McCotter asked California and Los Angeles County to confirm within 48 hours the eligibility of “over 20,000 individuals” and to segregate their ballots. The plaintiffs’ motion describes a similar letter to Washington state asking officials to review a list within 24 hours and not to verify or tabulate the listed voters’ ballots.

The Justice Department’s defense is that none of this binds anyone. Its Oct. 28 opposition says the letters “are not self-executing” and that the government would need an order from a federal court to compel a state to do anything. It tried that in California and lost: on Oct. 28 a federal judge refused to make the state hold back about 20,000 mail ballots, and the department appealed immediately, according to the AP.

Why standing may decide the noncitizen voting lawsuit

Boasberg sounded sympathetic to the concerns and skeptical of the plaintiffs’ right to sue. “I don’t doubt you have legitimate concerns,” he said, according to the AP. “The harder question for me is your standing to do it.” Justice Department lawyer Christian Dibblee told the court that whether states act on a letter is “up to them,” because the letter “just notifies them of a potential violation of federal law,” the AP reported.

If the letters are only notices, party committees will struggle to show the concrete injury standing requires. A loss on standing would leave the merits unresolved and the letters in circulation, with states free to refuse them, as three did in July. If Boasberg instead finds standing, any order is likely to be tailored to the plaintiffs, since the government has invoked the Supreme Court’s 2025 decision in Trump v. CASA limiting universal relief.

Either way, criminal enforcement is untouched. The government’s filing stresses that the federal ban on noncitizen voting, 18 U.S.C. 611, “is not challenged here.” The department also keeps filing cases: it said Oct. 29 that 30 people have been indicted in North Carolina this year for illegal voting, adding to its five-state roundup earlier this week. The open question in court is the distance between those charges, counted in dozens, and the flags, counted in the tens of thousands. Administration lawyers say they have evidence noncitizens have voted or will vote in the midterms; the AP describes such voting as extremely rare.

For naturalized citizens who fear they are on a list, the government’s own brief makes one point plain: a federal letter removes no one from the rolls. Only state or county action, or a court order, can do that.

Dates to watch

Oct. 30: The Justice Department’s list of letter recipients is due to the court.
Nov. 2: Boasberg’s ruling on emergency relief is expected.
Nov. 3: Election Day.
Pending: The Justice Department’s appeal of the California ballot ruling.

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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