New lawsuit challenges DHS over unverified noncitizen voter roll claims

An immigrant rights group sued the Trump administration Wednesday over its escalating effort to screen state voter rolls for alleged noncitizens, arguing the campaign illegally threatens lawful voters just weeks before the midterms.

The lawsuit, filed in federal court in Washington, D.C., by the Coalition for Humane Immigrant Rights, or CHIRLA, and a California voter seeks to block the Department of Homeland Security (DHS) and Department of Justice (DOJ) from forcing states to run voter registration records through federal databases to identify supposed noncitizens.

At the center of the case is the Trump administration’s claim that more than 190,000 people on California’s voter rolls may be noncitizens — a figure DHS has not publicly substantiated or explained how it calculated.

The plaintiffs say the government’s database-matching campaign poses a particular danger to naturalized citizens, who may still appear as noncitizens in federal records created before they became U.S. citizens.

“Naturalized citizens, lawfully eligible to vote, now face fear and extra scrutiny of their right to vote enshrined in their very citizenship,” the complaint reads

The lawsuit marks a new front in a growing wave of litigation over the Trump administration’s efforts to use DHS databases to police state voter rolls. Unlike several earlier cases focused primarily on the administration’s overhaul of the federal SAVE citizenship-verification system, the new challenge is broader.

The plaintiffs say DHS cannot simply switch to a different federal database to continue matching voter records and pressuring states to act on the results.

The complaint says the plaintiffs do not know whether DHS used SAVE or another federal dataset to generate the 190,832 figure it sent California officials. But they argue either approach would be unlawful without congressional authorization and the privacy protections required for federal data matching.

“No statute gives Defendants authority to require states to submit voter registration information through DHS databases, let alone allow DHS to determine if voter information is up to date for the purpose of verifying citizenship of voters and voter registrants,” the lawsuit says. 

The plaintiffs also accuse the administration of placing state election officials in an impossible position by publicizing large numbers of supposed noncitizen voters while withholding the underlying names and methodology.

“Functionally, local officials have been told, under the threat of criminal, civil and financial penalty, to ‘go fish,’” the complaint says.

That concern is reinforced by DHS’s own recent retreats from sweeping claims it made about voter rolls in other battleground states.

In Nevada, Homeland Security Secretary Markwayne Mullin initially alleged that as many as 15,903 noncitizens were registered to vote. But DHS officials later told state officials that figure represented only “the ceiling” of possible matches and disclosed that they had identified just 185 “potential” noncitizens after further review.

Nevada Secretary of State Cisco Aguilar sharply criticized the process, telling Democracy Docket that federal officials were “not sophisticated in their efforts to determine who is eligible to vote and who’s not, and that’s dangerous.” 

DHS has expressed similar uncertainty in Pennsylvania.

The department privately told Pennsylvania election officials that it did not have “high confidence” in its public claim that 14,576 noncitizens were improperly registered there, according to a letter from Republican Secretary of the Commonwealth Al Schmidt.

DHS also acknowledged it still needed to explain how it reached that number and what federal datasets it used. 

Those disclosures are significant because the new lawsuit argues that large-scale database matching is especially prone to falsely flagging naturalized citizens.

A person who once identified as a noncitizen while applying for a license, benefit or other government service may remain coded that way in an older federal record even after becoming a citizen, the complaint says. 

The plaintiffs allege that such errors can result in lawful voters being forced to prove their citizenship or facing cancellation of their registrations. Elibible voter may also refrain from registering or voting altogether because they fear being wrongly labeled noncitizens or subjected to investigation.

The complaint brings eight claims, including violations of the Privacy Act, Administrative Procedure Act, Elections Clause, due process and equal protection. It also argues the administration has exceeded its constitutional authority because the executive branch has no independent power to take control of state voter registration systems.

The plaintiffs are asking the court to declare unlawful and block what they call the administration’s “list matching exercise/voter purge” against California and its local election officials. 

A federal court previously ruled that DHS’s revamped SAVE system violated federal privacy and Social Security laws, while another court blocked portions of Trump’s March executive order which attempts to direct federal agencies to build new systems for policing state voter rolls.