California warns DOJ turning voting law on its head to strong-arm election workers into compliance

The Department of Justice (DOJ) is twisting a law that makes it illegal for noncitizens to vote in its effort to pressure California election workers not to count ballots sent to 20,000 people the Trump administration alleges may be noncitizens, attorneys for the state said on Tuesday.

The administration’s bid for a court demanding California withhold and not count those ballots hinges on 18 U.S.C. § 611, a criminal statute that prohibits noncitizens from voting in elections. It does not apply to election workers. The Trump administration could be using this tactic to work around a law that bars systematic voter purges 90 days before an election. 

Rather than prosecuting the 20,000 alleged noncitizens they suspect of voting illegally, California’s attorneys argued the administration is trying to strong-arm local election officials to “prevent someone else’s alleged criminal conduct.” 

“Plaintiff cites no authority to support this unprecedented use of the Court’s equitable power,” the attorneys wrote.

The legal battle began last week after state officials rebuffed the Trump administration’s ultimatum to review a list of more than 20,000 registered voters federal agencies say are likely noncitizens within only 48 hours.

State officials expressed concern about the DOJ’s data and methodology and said there was no legal basis for the Trump administration to meddle in California’s administration of the election.

The Trump administration sued in response to stop votes from those 20,000 people accused of being noncitizens from being counted until their citizenship is confirmed. The administration also threatened California officials with criminal prosecution if they process the ballots as usual. 

“Plaintiff’s demand is astounding,” California’s attorneys said on Tuesday. “It seeks an injunction prohibiting California from tabulating the ballots of registered voters if federal agencies ‘identified’ those voters as ‘likely noncitizens’ until the completion of some unspecified process for verifying their citizenship.”

“This amounts to suspending voting rights for thousands of voters who are only suspected of being noncitizens, with absolutely no guarantee that their rights will be restored in time for their votes to be counted,” the attorneys added. “This brazen request, if granted, would violate longstanding protections in federal statute and create an unconstitutional burden on affected citizens’ voting rights. Plaintiff cannot succeed in obtaining illegal relief. Nor can Defendants be held liable for failing to accede to such unlawful demands.”

Los Angeles County, also a target of the DOJ’s lawsuit, similarly argued Section 611 “cannot be read as an implied grant of authority to impose an emergency ballot withholding regime.”

“Section 611, for its part, prohibits aliens from voting in federal elections,” attorneys for the country wrote in its own filing on Tuesday. “It does not require registrars to segregate ballots based on federal referrals, to independently confirm the citizenship of every flagged registrant, or to withhold counting until federal officials are satisfied. The Executive identifies no congressionally prescribed verification procedure that California has displaced or the County has refused to follow.”