Trump DOJ threatens California election officials with criminal exposure if they count ballots from flagged voters

The Department of Justice dramatically escalated its confrontation with California election officials Friday, explicitly warning that they could face federal criminal exposure if they count ballots from voters the Trump administration has flagged as potential noncitizens.

In a new letter to Los Angeles County, Acting Deputy Attorney General Trent McCotter said election officials who “knowingly tabulate” ballots from people identified by federal agencies as noncitizens could risk becoming “aiders and abettors to a federal crime.”

“The legal consequences for either facilitating or ignoring a federal crime are significant,” McCotter wrote.

The threat marks a grave escalation in DOJ’s effort to force California to act on a list of more than 20,000 registered voters federal agencies say are likely noncitizens. The department sued California on Thursday, asking a federal judge to stop election officials from counting those voters’ mail ballots until their citizenship can be verified.

Now, DOJ is warning the officials themselves that continuing to count the ballots could expose them to criminal liability.

McCotter’s letter cites 18 U.S.C. § 611, which makes it a federal crime for certain noncitizens to vote in federal elections, and 18 U.S.C. § 2, the federal aiding-and-abetting statute.

“If persons knowingly tabulate ballots cast by individuals identified by federal agencies as noncitizens, they risk becoming aiders and abettors to a federal crime,” McCotter wrote.

He argued that California election officials are now on “actual notice of noncitizen voting” because DOJ provided them with the federal list, and said state election procedures cannot shield officials from federal criminal law.

But DOJ’s characterization goes further than the federal government’s own lawsuit, which repeatedly describes the people on its list as “likely noncitizens” rather than people conclusively determined to be noncitizens. The government has also asked California officials to verify whether citizens were mistakenly included before acting against their ballots.

That distinction could matter under the criminal statute DOJ is invoking. The Supreme Court has held that aiding-and-abetting liability requires an affirmative act furthering an underlying crime and an intent to facilitate its commission — not simply knowledge that someone else has alleged a crime may be occurring.

Section 611 itself prohibits an alien from unlawfully voting in a federal election and contains exceptions for some people who reasonably believed they were U.S. citizens. 

The new letter came in response to Los Angeles County’s rejection of DOJ’s earlier demand that officials review the federal list and segregate ballots from people whose citizenship could not be confirmed.

McCotter rejected the county’s argument that it lacked authority to pause or segregate those ballots, calling such action “a standard election-administration practice implemented nationwide.”

He also dismissed the county’s reliance on the National Voter Registration Act’s 90-day restriction on systematic voter removals, arguing DOJ is not demanding that California purge anyone from its voter rolls but only that officials temporarily segregate their ballots.

And in an acknowledgment that raises further questions about DOJ’s decision to target Los Angeles County, McCotter conceded that the federal list includes people who live outside Los Angeles County. He nevertheless said that fact, along with administrative burdens and timing constraints, did not excuse the county from acting on the government’s information.

“The Department strongly urges the County and the SOS to reconsider their positions before taking actions that risk significant federal scrutiny and legal exposure,” McCotter wrote.

The letter also further underscores McCotter’s unusually prominent role in DOJ’s California election campaign. Civil voting litigation has traditionally been handled through the department’s Civil Rights Division, but McCotter — the acting deputy attorney general whose office oversees major criminal-enforcement priorities — personally signed the original ultimatum, appeared on the California lawsuit and has now issued the department’s clearest criminal warning to election officials yet.

The threat comes while voting is already underway in California and less than three weeks before Election Day.