Justice Department Warns California Election Officials of Possible Prosecution
A senior Justice Department official told Los Angeles County and California election officials that knowingly counting ballots from people federal agencies identify as noncitizens could make them accomplices to a federal crime. The letter came a day after the department sued California over about 20,000 registered voters it says are likely noncitizens; California says the federal government has provided no evidence for that figure.
The Justice Department told California election officials that if they knowingly count ballots cast by people federal agencies have flagged as noncitizens, they risk prosecution as accomplices to a federal crime.
"If persons knowingly tabulate ballots cast by individuals identified by federal agencies as noncitizens, they risk becoming aiders and abettors to a federal crime," wrote Trent McCotter, the acting deputy attorney general, in a letter to the Los Angeles County counsel's office. It was copied to California Secretary of State Shirley Weber and Los Angeles County Registrar Dean Logan.
A day earlier, the department sued California, saying the Department of Homeland Security had found more than 20,000 people who are likely noncitizens on the state's voter rolls. California mails a ballot to every registered voter. Weber says the administration has provided no evidence or method behind the list, and Logan says his office cannot withhold ballots "based solely on unverified allegations."
Voting by noncitizens in federal elections is a federal crime. No election official has been charged, and no court has ruled on the lawsuit. The midterm election is on November 3.
Washington — The Justice Department has warned California election officials that counting ballots from people the federal government has flagged as noncitizens could expose them to criminal investigation and prosecution.
"The legal consequences for either facilitating or ignoring a federal crime are significant. Noncitizen voting in a federal election is a federal crime — and knowingly facilitating such conduct is equally unlawful," McCotter wrote in the letter, sent on October 16 and first obtained by The Associated Press. An aider and abettor is someone who helps another person commit a crime and can be charged as if they had committed it themselves. Any such case in the Los Angeles area would be handled by the office of Bill Essayli, the top federal prosecutor there.
The lawsuit behind the letter
On October 15, the Justice Department filed a federal complaint against the State of California, Weber and Logan. The department said that Homeland Security Investigations, the investigative arm of the Department of Homeland Security, compared publicly available California voter files with federal immigration records and identified more than 20,000 people who are likely noncitizens and appear to be registered to vote. The suit asks a court to stop California from counting mail ballots from those people until their immigration status is confirmed.
"State-facilitated voter fraud is unacceptable in the United States of America," Attorney General Todd Blanche said. Homeland Security Secretary Markwayne Mullin called the analysis preliminary and said the review is ongoing. A Justice Department spokesperson, Kiersten Pels, told the Los Angeles Times that the 20,000 are people who "have been manually verified" as ineligible and that the number "can and will go up."
The suit came two days after the department gave the state 48 hours to review the names. Essayli said state officials "were given an opportunity to remove noncitizens from their voter rolls and to sequester ballots returned from suspected ineligible voters. They refused." To sequester a ballot means to set it aside without counting it.
How the list arrived
Weber's office said it never received the list itself. The names went to the Los Angeles County registrar on a password-protected thumb drive, with the password on a sticky note. Logan said opening the device would break his office's security rules, and he did not open it. The department then sent an Excel spreadsheet listing about 20,000 voters by name, date of birth and address. According to the Los Angeles Times, the list appeared to include voters from across California, not only Los Angeles County, and gave no explanation of how the people on it were identified.
"We cannot withhold or refuse to count ballots based solely on unverified allegations, nor can we disregard the legal requirements governing our election — and we certainly have no authority to act on records that are outside of our jurisdiction," Logan said. His office said it was reviewing the spreadsheet, in part to learn how many of the voters live in the county, and was still waiting for the method used to flag them.
What California says
Weber said the administration has given California no evidence and no legal authority for its demand. In a letter to McCotter, she wrote that she would review any evidence and "take the appropriate steps," but "I will not disenfranchise thousands of Californians — or order any county elections official to do so — based solely upon an unsupported and likely inaccurate 'belie[f]' that certain voters are 'likely' noncitizens." She wrote that treating the voters as ineligible until proven otherwise would violate the 90-day quiet period before an election, during which federal law bars states from systematic voter-roll maintenance.
Attorney General Rob Bonta said the demands are "meritless." He also pointed to Mullin's suggestion in July that California had about 190,000 noncitizens on its rolls, against 20,000 now. "What happened to the 170,000?" he said.
What is and is not in place
The letter is a warning, not a charge. The court has not ruled, so California's counting rules have not changed and ballots are already in voters' hands. According to the AP, the Justice Department has charged about 90 people this year with election-related crimes, 50 of them accused of voting as noncitizens. In July, the administration said Nevada had 1,500 noncitizens on its voter rolls; according to the AP, after the names were sent to the state, the number of registered noncitizens turned out to be zero.
More than 23 million people are registered to vote in California, and a handful of competitive U.S. House races there could help decide which party controls the House for the last two years of President Trump's term.