Three days before Americans vote in the midterms, the fight over the Justice Department's lists of alleged noncitizen voters has become a court case on several fronts at once — and every part of it turns on the same question: are the names on the government's lists actually ineligible voters, or are lawful citizens being flagged by mistake?
On Friday evening, U.S. District Judge Trina Thompson in California issued a sweeping emergency order against the department. While her order stands, the Justice Department and the Department of Homeland Security cannot demand that election officials in any state segregate ballots, purge voters from the rolls, or halt ballot processing — and they cannot threaten election officials with criminal prosecution to force those changes. Thompson, appointed by President Joe Biden, wrote that although the administration says its actions are designed to halt unlawful voting by noncitizens, they "are likely to have the effect of interfering with election administration and disenfranchising lawful voters." She also ruled that officials who run the election according to the law "do not violate federal criminal law even if a particular ballot belongs to a registered voter alleged by Defendants to be ineligible to vote."
The Justice Department appealed Thompson's order on Saturday. Its case, stated plainly by department spokesperson Kiersten V. Pels, is that "every ballot cast by an ineligible voter cancels out the vote of an American citizen," and that "the Department makes no apology for protecting those votes." The department argues there is just as much to lose if the ballots are not separated. Thompson's order runs to November 16, and it also requires the administration to inform her of any search warrant applications, grand jury subpoenas, or other demands to access election materials or ballots connected to the lists.
On the same Saturday, a second judge was hearing the same fight in Washington. At a rare Saturday hearing, U.S. District Judge Tanya Chutkan warned that the administration's efforts to intervene in the election could have a "chilling effect," noting that the Justice Department's letters to local election officials had included inaccurate data and that past efforts to purge rolls of supposed noncitizens had swept up U.S. citizens. "The government's been wrong," she said. "In fact, they've very rarely been right." The clearest example before her came from Nevada: the department had alerted Nevada officials to 15,903 people it argued were noncitizen voters, and Nevada checked the names and confirmed that not one of them was a noncitizen. The department's own lawyer, Elizabeth Shapiro, conceded the point in part — "I cannot disagree with you the government has made mistakes," she said, adding, "The government is not trying to make mistakes." Chutkan is expected to rule in the coming days.
The lists at the centre of the case come from a data-matching operation led by the Department of Homeland Security, comparing state voter lists with federal records. The first outside check of the California list landed on Saturday, in a court filing by two data analysts with UCLA's Voting Rights Project, working with the immigrant-rights group CHIRLA. They examined the 20,930 names the department demanded California treat as possible illegal voters, their ballots separated during the Election Day count. They found that 8,880 of the names — 42 percent of the entire list — do not correspond to anyone in California's current voter file at all. At least 22 of the names are confirmed U.S. citizens, and the analysts found that nearly 7,500 naturalized citizens in the state were "highly likely" to have been incorrectly flagged as ineligible. They also noted that the administration had removed the voter identification number from the names — the single most crucial data point for election officials trying to check them.
President Trump entered the fight himself on Saturday, attacking the rulings in a social media post. His Justice Department, he wrote, had found "20,000, but potentially Hundreds of Thousands, and maybe even Millions," of fraudulent votes, "and the Court has just ruled against it. Why would they reject fixing Election Fraud?" California is not the only state involved: the department has sent letters to 29 states and Washington, D.C., threatening investigations and demanding records, urged Washington state to remove some 400 people it calls possible noncitizens — a list state officials there also call unreliable — and sued in California to block the counting of ballots cast by thousands of voters it says may be noncitizens, a demand a federal appeals court has already rejected.
California's governor then widened the case further. In a letter on Saturday to the state's four chief federal judges, Governor Gavin Newsom warned that the Justice Department may seek warrants to seize ballots before the midterm results are certified, saying the only reason to do that "would be to interfere" in the count. Newsom said he knew of no such request actually pending. No response from the department to his letter has been reported.
For ordinary voters, what is at stake is direct. A citizen whose name lands on one of these lists by mistake risks having their ballot set aside or being put off voting altogether by the threat hanging over the count — while a ballot genuinely cast by an ineligible voter, the department argues, cancels a citizen's vote just the same. With the rulings expiring and appeals already filed, the courts — not the calendar — will decide which of those risks Election Day runs under.
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