The Trump administration's voter-roll suits and its hunt for noncitizen voters

In July, DOJ warned state election officials that they could face prosecution if they knowingly allowed noncitizens to vote or kept them on voter rolls.^[16] Homeland Security Secretary Markwayne Mullin notified officials in California, Pennsylvania, New Jersey and Nevada that DHS said it had identified more than 250,000 potential noncitizens on their voter rolls.^[17] Pennsylvania officials asked DHS for evidence supporting its claim involving more than 14,000 people in that state.^[18]

New Jersey Gov. Mikie Sherrill said in July that about 6,600 noncitizens had been mistakenly registered through the state's motor vehicle system. She later said some of the people under review could actually be citizens and refused DOJ's request for their personal data, saying it had no legal basis. A federal judge dismissed DOJ's suit seeking New Jersey's unredacted voter records.^[19]

In Nevada, DHS said in August that it had identified 185 potential noncitizens so far, after initially flagging nearly 16,000. The department described its earlier figure as preliminary, with more names still under review.^[20] In September, Nevada officials said their review of those 185 records found that all were US citizens.^[6]

Criminal cases proceeded alongside the registration reviews. In September, federal prosecutors announced charges against seven people in North Texas for allegedly voting illegally in federal elections or falsely claiming US citizenship.^[4] Prosecutors also charged three noncitizens with illegally voting in Georgia.^[5] AP reported a Homeland Security official's account of about 1,600 voter-fraud cases and 160 arrests. Election experts said the arrest total illustrated how rare noncitizen voting was.^[3]

A Reuters review of official records, reported in September, found that states may have added more than 30,000 self-declared noncitizens to voter rolls since 2000 because of software glitches and clerical errors in processing driver's license and state ID applications. Experts cited in that reporting said the numbers were too small relative to the registered electorate to affect elections.^[21]

The data reviews extended across agencies. Reuters reported in September, citing an internal email, that the White House had pressed agencies to accelerate checks of voter rolls from at least 47 states obtained by DHS.^[1] CNN reported in October that DHS's operation had drawn on tens of millions of records, scrutinized nonprofit voter-registration groups and considered deploying undercover agents.^[22]

Courts ruled against parts of the effort in October. On October 1, US District Judge David Leibowitz in Florida dismissed a federal charge against a woman accused of illegally voting in 2020, finding the federal noncitizen-voting statute unconstitutional as applied to her case.^[23] On October 9, US District Judge Sparkle Sooknanan set aside DOJ's voter-list maintenance policy, which involved collecting state voter lists and checking them against federal immigration data. The ruling addressed that policy; it did not prevent states from maintaining their own voter rolls.^[8]

The dispute then centered on California. On October 13, California officials received DOJ notices identifying people it described as likely noncitizens who had received mail-in ballots, demanding a review within 48 hours. Federal prosecutors charged 28 foreign nationals in the state with election-related offenses, and the administration sued to block more than 20,000 potentially ineligible voters from having their mail-in ballots counted. State officials disputed claims of widespread fraud.^[9] On October 15, a separate lawsuit filed in Washington, D.C., alleged that DHS had obtained voter files from at least 47 states and collected and handled the data in violation of federal law and privacy safeguards.^[10] Virginia's attorney general had said in September that DHS may have broken state election laws, after a whistleblower reported that its employees misrepresented themselves while using voter lookup tools.^[24] Later in October, the Justice Department asked an appeals court to intervene in its California mail-ballot suit, which the state's attorney general said "borders on the absurd,"^[25] and federal prosecutor Bill Essayli said investigators had confirmed that all 20,000 flagged voters were noncitizens.^[25] On October 22, a federal judge ordered the administration to halt its investigations into noncitizen voting in nine states.^[11]

The California fight ended at the Supreme Court. A district judge refused to stop the state from processing the ballots, warning it would "wreak havoc" on the midterms, and a federal appeals court rejected the department's emergency bid 2-1.^[26] The Associated Press reported that analysts found more than 40% of the names on the department's list were not on California's voter rolls,^[27] and CNN reported that the administration's search had found far less than its claims suggested.^[28] On November 2, the Supreme Court rejected the emergency request.^[12] That day the Justice Department said it had charged 63 people with illegal voting, fraudulent registration and false citizenship claims, according to a conservative outlet that put the total charged under Trump at 239,^[13] after warning election officials in all 50 states that they could face prosecution for failing to preserve records.^[29]

The pressure on California went beyond the ballot case. In late October, grand jury subpoenas went to Los Angeles County election workers seeking records on how they screened for noncitizen voters.^[30] On October 30, U.S. District Judge Trina Thompson ordered the administration to stop threatening election officials with criminal prosecution and to halt its efforts to force them to remove people from voter rolls, deny ballot requests or set aside ballots.^[31] On November 6, the Justice Department moved to dismiss its own lawsuit over the roughly 20,000 California ballots, and the judge denounced the suit.^[14]