The Justice Department has given California election officials 48 hours to check the citizenship of people on a federal list of suspected noncitizens who were mailed ballots for next month's midterm elections, warning in letters this week that it will seek emergency relief in court if they cannot.
The letters, sent Tuesday and signed by acting Deputy Attorney General Trent McCotter, the department's No. 2 official, went to Secretary of State Shirley Weber and to Dean Logan, the registrar-recorder and county clerk of Los Angeles County. McCotter wrote that the department had given county officials a password-protected thumb drive holding the names of people the federal government "believes are likely non-citizens" and who were sent a mail ballot this year.
Officials were asked to determine within 48 hours whether anyone on the list is a citizen. For anyone whose citizenship cannot be independently confirmed, McCotter asked that local election officials be told to "segregate" that person's vote-by-mail ballot, and "not cancel" it, until the question is settled, according to the letter CBS News reviewed. If someone on the list has not yet been sent a ballot, he asked officials to take "all immediate and reasonable steps" to withhold one until the department confirms the person's citizenship. The letters also ask the officials to work with the Department of Homeland Security in carrying out those steps.
"If you cannot implement this process by then, given the ongoing federal election, the United States will have no choice but to seek emergency relief," McCotter wrote to Weber.
The department defended the letters. "Federal law is clear: only American citizens may vote in federal elections," Justice Department spokesperson Kiersten Pels told CNN. "The Department will take all necessary legal action to protect election integrity and ensure compliance with federal law." A department spokesperson also confirmed the letters to the New York Post's California edition, and the department said in a statement that its request "should not be controversial" because it is a federal crime for noncitizens to vote in U.S. elections and the department is "asking California to ensure that is not occurring."
A spokesperson for the Los Angeles County Registrar-Recorder confirmed to CBS News that the office had received its letter, and a person with knowledge of the matter told CBS that similar letters were mailed to other counties in the state. Neither the county registrar nor Weber's office immediately responded to requests for comment from the Associated Press or CNN. The letters were first reported by Reuters.
The letters are the administration's latest effort to press states over whether noncitizens are on their voter rolls. In July, Harmeet Dhillon, who heads the department's Civil Rights Division, wrote to all 50 states threatening criminal action if they knowingly allowed noncitizens to remain registered. State officials of both parties dismissed the department's summer warnings of prosecution. That same month, Homeland Security Secretary Markwayne Mullin wrote to California, Nevada, New Jersey and Pennsylvania alleging that as many as 250,000 noncitizens were registered to vote in those states, a figure he has said DHS reached by comparing public voter rolls with federal immigration records. Weber replied at the time that she had "serious doubts about the reliability of your data and accuracy of your claims, since my office has not shared our statewide voter registration list with DHS or any other federal agency or official."
Those numbers have drawn scrutiny. DHS initially claimed 15,900 noncitizen registrants in Nevada, then acknowledged to state officials that the count was an unvetted preliminary finding and that manual review had "confirmed" 185 of them, CNN reported. Last month Nevada told DHS that its own check found all 185 were citizens, a finding DHS disputes.
The Civil Rights Division has also filed about 30 lawsuits to obtain unredacted state voter rolls and has not won any of the cases decided so far, including the one against California. It has turned instead to publicly available voter lists and other investigative tools to look for noncitizens who may be registered. The administration did prevail at the Supreme Court, which allowed the use of a federal immigration data system that President Trump has urged states to adopt for checking voters' citizenship; election officials in more than half the states use it voluntarily.
Studies have found noncitizen voting to be rare. A Reuters analysis published last month found that software glitches and clerical errors in driver's license and state ID processing may have added more than 30,000 self-declared noncitizens to voter rolls since 2000, a small share of the nation's registered voters, though it was unclear how many of them voted. The Justice Department has charged about 90 people with election misconduct so far this year, including 50 accused of voting as noncitizens.
David Becker, a former Justice Department voting section attorney who now advises election administrators, questioned the timing. He said California's voter lists are public, that the administration has had 21 months to examine them and that the state mailed ballots to all voters on Oct. 5. "One must question why the DOJ would violate its own rules about investigating elections close to Election Day, and over a week after they knew the state had already mailed ballots out, particularly when their past claims have been full of errors," Becker said.
It is not clear what legal avenue the administration could use to force California officials to act, CNN reported. States carry the main responsibility for running elections under the Constitution, which also lets Congress set some rules for federal contests.