Noncitizen Voter Lists Blocked by Federal Judge

A federal judge in Washington has stopped DHS and the Justice Department from sending states more lists of suspected noncitizen voters, ruling that the transfers likely broke the Privacy Act. The lists are built partly from immigration records, which is why naturalized citizens keep turning up on them.

Noncitizen voter lists compiled by the federal government can no longer be sent to state election officials, at least for now, after U.S. District Judge Tanya Chutkan granted a preliminary injunction on Monday, Nov. 2. The order also bars DHS and the Justice Department from asking states to set aside or refuse to count the ballots of people on those lists until their citizenship is proven, according to Reuters. It arrived the night before Election Day, after the administration had pressed California and Washington to act on names it sent them.

The motion in League of Women Voters v. U.S. Department of Homeland Security, No. 26-cv-3602, came from two plaintiffs, the League of United Latin American Citizens and the Electronic Privacy Information Center. Chutkan also stayed what the opinion calls the “Voter Data Transmission Policy” under 5 U.S.C. 705, which lets a court freeze an agency action while a challenge proceeds.

Why immigration records shape noncitizen voter lists

The opinion describes how the lists are made: DHS and DOJ run state voter rolls against State Department, Social Security Administration and USCIS data, then supplement the matches with commercial records. That method has a built-in weakness. An immigration file captures a person’s status on the day of the last filing. Someone who arrived on a visa, became a permanent resident and later naturalized can still look like a noncitizen in a database that was never updated after the oath ceremony.

The opinion recounts that DHS flagged 15,903 people in Nevada as noncitizens, and that a manual review found every one of them was a U.S. citizen. It also cites a DOJ transmission to Los Angeles County covering more than 20,000 people, only 7,035 of whom had addresses in the county. Those numbers echo a court filing in the California litigation, which found that 42 percent of the names on the federal list did not appear on the state’s voter rolls.

The Privacy Act claims are the legal core. The 1974 law bars federal agencies from disclosing records about individuals without consent unless an exception applies. One exception covers “routine uses,” but an agency must first publish them in a system of records notice. Another covers law enforcement, but the statute requires a written request from the head of the receiving agency for specific records. Bulk transfers of voter matches to state officials fit neither exception easily, and Chutkan found the plaintiffs likely to succeed. She also held that harm to a voter registration group days before an election cannot be undone later.

The government’s position and a split between courts

The Justice Department argued in a Saturday filing that its letters to California and Washington were part of enforcing the federal ban on noncitizen voting and “did not amount to a distinct policy subject to review by a federal court,” Reuters reported. If the letters were individual enforcement steps rather than a policy, much of the case for court review would fall away. Chutkan rejected that view, at least for now.

A Los Angeles judge refused DOJ’s request to make California hold more than 20,000 mail ballots, and the Supreme Court declined to intervene. A San Francisco judge ordered DOJ to stop threatening election officials with prosecution. Yet on the same Monday, a Ninth Circuit panel cleared the government to resume those threats in that separate case, according to Reuters. Chutkan sits in the D.C. Circuit and is not bound by that decision, so the federal government now faces different rules depending on which court is asking.

For immigrants, what the order leaves alone matters as much. It covers list sharing and requests to sideline ballots, not the criminal cases already filed, including the 63 people charged on the eve of the vote, most of them green card holders. For a permanent resident, an unlawful vote remains a ground of removal and can bar naturalization, whatever happens to the data policy.

An appeal to the D.C. Circuit is the likely next step. The government may invoke the Supreme Court’s caution about late changes to election rules, but that argument is awkward here, since the injunction keeps states counting ballots as they already were. The longer fight is over whether DHS can keep feeding immigration data into voter checks at all without first publishing the notice the Privacy Act requires.

What to watch

Appeal: any government motion in the D.C. Circuit to stay the injunction.
Post-election canvass: whether California or Washington election officials receive new federal requests on specific ballots.
Records notice: whether DHS publishes a new Privacy Act system of records notice covering voter data, which would change the legal footing of the program.

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 an LL.M. from California Western School of Law, San Diego 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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