DOJ Suit Targets 20,000 California Voters but Doesn't Allege One Voted

The sentence at the center of the Justice Department's new lawsuit against California begins with an "if." Paragraph 48 of the complaint reads: If California followed its law, then Defendants sent individuals identified by the Federal Government as likely to be noncitizens on voter rolls vote-by-mail ballots to participate in the federal election.

The 15-page complaint, as posted and without its exhibits, never says that any of the roughly 20,000 listed voters returned or cast a ballot.

In United States v. State of California, No. 2:26-cv-12025, filed Thursday, Oct. 15 in the U.S. District Court for the Central District of California, the Justice Department asks a judge to bar California from counting mail ballots from about 20,000 registered voters the federal government calls "likely noncitizens" until their citizenship is verified. Election Day is Tuesday, Nov. 3, which is 18 days from today, Friday, Oct. 16.

What the complaint asks, and what it never says

The suit pleads one claim, under the Supremacy Clause, which lets federal law override state action. The theory is that California is helping bring about something federal law forbids. The complaint pairs 18 U.S.C. § 611, which makes it unlawful for any alien to vote in a federal election, with a line from Norwood v. Harrison: a state may not induce, encourage or promote private persons to accomplish what it is constitutionally forbidden to accomplish. It pleads no claim under the National Voter Registration Act.

Paragraph 63 asks for an injunction barring California from tabulating, meaning counting, in federal elections the mail ballots received from individuals identified by the Federal Government as likely noncitizens until those individuals' citizenship status can be verified. Paragraph 62 adds a declaration that sending and counting the ballots is preempted. The caption reads "ACTION SEEKING STATEWIDE RELIEF."

The complaint never asks the court to find that any person is a noncitizen. It asks for a hold. The complaint is firm that ballots went out: paragraph 44 says California mailed them Oct. 1 to all registered voters, and paragraph 46 says nearly 20,000 noncitizens have been sent a ballot (or will receive one). It hedges only on the overlap, saying the mailing went including, it seems, to those who the Federal Government considered as likely noncitizens. Paragraph 59 says California intends to count their vote without verifying citizenship. That is a statement about intent, not about a returned envelope.

The Oct. 13 letter from Acting Deputy Attorney General R. Trent McCotter asked California to segregate — not cancel the ballots, and not to send ballots to listed voters who had none yet. The complaint does not ask the court to stop ballots going out.

Where the 20,000 came from

U.S. Citizenship and Immigration Services (USCIS) compares California's voter roll, which "is made available for purchase," against its own records. Third-party software sorts matches into high, medium or low confidence, and "high confidence" means a strong link across multiple identifiers. The complaint says USCIS then searches for evidence of naturalization or derived citizenship, checks State Department records, reviews Social Security records to see whether anyone has died, and runs a second-level review before handing the list to Homeland Security Investigations.

That is more careful than a name match, and the federal side's best answer to the charge that the list is a guess. But it is not the "faulty citizenship database" that at least one headline (Common Dreams) blames. Footnote 1 says California has not, to the government's knowledge, submitted voter rolls through the Systematic Alien Verification for Entitlements program, known as SAVE, and that USCIS's process here was done independent of SAVE. On Oct. 9, U.S. District Judge Sparkle Sooknanan in Washington vacated a Justice Department policy of running voter rolls through it, but that ruling did not reach the matching the complaint describes. Calling this list faulty because SAVE has problems is an inference, not a finding.

The closest analogue is Nevada, where a similar method produced a July claim of "as many as" 15,903 noncitizens. In late August, DHS said it had manually confirmed 185. In September, Nevada Deputy Attorney General Greg D. Ott wrote that our records indicate that they were citizens. DHS calls that "false" and says the 185 were a manually reviewed subset.

California has its own gap. Weber says that on July 16, DHS Secretary Markwayne Mullin alleged that more than 190,000 registered voters in the state "may be" noncitizens. The list that arrived is about a tenth of that, and the LA Times reported the complaint never explains the drop. Secretary of State Shirley Weber says her office never received the list. Los Angeles County Registrar-Recorder Dean Logan, handed a password-protected thumb drive, did not open it, saying he does not consider the device "a secure medium."

The strongest case on each side

Start with the Justice Department, whose case is better than critics admit. The complaint says California's verification statement omits any affirmation of citizenship and that even a mark such as "X" is presumed valid. If so, a signature is the only gate between a flagged name and a counted ballot. DOJ's implied point is that a counted ballot cannot be pulled back, and paragraph 60 calls investigating thousands of people before the election "not practicable or feasible." The ask is a hold, not a purge, and two Supreme Court actions help its framing, though the complaint cites neither: the Sept. 25 order allowing "individualized inquiries" during the 90-day window, and the Oct. 30, 2024 order letting Virginia remove roughly 1,600 alleged noncitizens. Attorney General Todd Blanche:

"State-facilitated voter fraud is unacceptable in the United States of America."

Todd Blanche, U.S. attorney general

Post by @AGToddBlanche

California's answer starts with who runs elections. UCLA law professor Rick Hasen says federal law does not preempt the state's right to run its election and judge the qualifications of its voters. The complaint itself concedes in paragraph 60 that the United States prosecutes unlawful voting. California adds that the list is unverified and that Elections Code § 15109 says returned ballots "must be tabulated." Weber wrote in her letter to McCotter:

"I will not disenfranchise thousands of Californians… based solely upon an unsupported and likely inaccurate 'belie[f]' that certain voters are 'likely' non-citizens."

Shirley Weber, California secretary of state

She called the situation an emergency of the DOJ's creation; DHS made its first claim in July. Sooknanan wrote on Oct. 9, in the SAVE case: The challenged policy represents the federal government's attempt to decide who gets to vote.

The record on odds is lopsided, with a caveat. CBS News reports the Civil Rights Division has filed 31 voter-roll lawsuits, lost 26 and won none. Those were about access to voter files, not counting ballots, and the experts CNN quoted treat the theory as novel. The predictions come from law professors, not judges. Loyola's Justin Levitt, a former Civil Rights Division lawyer, called the suit a press release masquerading as litigation. Notre Dame's Derek Muller called it, at best, a "long shot."

Then there is the National Voter Registration Act's 90-day provision, which requires states to finish programs that systematically remove ineligible voters not later than 90 days before a federal election. For Nov. 3 that line fell on Wednesday, Aug. 5. The administration argues it should not apply to noncitizens improperly registered, and NBC reported that a department spokesperson said it is asking California to sequester ballots, not change its voter list.

A calendar with no room for an open-ended hold

Counties, not the Secretary of State, count California's votes. The state has 58, and the Secretary of State's canvass schedule says they handle printing, mailing, verifying and counting. Only one county official is a defendant: Logan, in Los Angeles. Logan says the list covered people "throughout California, not specifically in Los Angeles County," and that he has "no authority to act on records that are outside of our jurisdiction." How an order aimed at Weber and one county registrar would reach the other 57 is a question a judge would have to answer.

Here is the clock the order would run into.

Date	What happens	Source
Wed., Aug. 5	The 90-day line before Election Day: states must have finished programs that systematically remove ineligible voters	52 U.S.C. § 20507(c)(2)(A)
Mon., Oct. 5	Last day to mail ballots to voters (29 days before the election)	Cal. Elections Code § 3000.5, as cited in the complaint
Tue., Nov. 3	Election Day; polls close at 8 p.m.	California Secretary of State
Tue., Nov. 10	Last day a postmarked mail ballot can arrive and be counted	California Secretary of State
Mon., Nov. 16	Counties must have counted and reported most ballots (signature-cure ballots are an exception)	California Secretary of State
Thu., Dec. 3	Counties must finalize results (30 days)	California Secretary of State
Fri., Dec. 11	Secretary of State certifies results (38 days)	California Secretary of State

My reading is that the word "until" is doing a great deal of work. The complaint tells California to verify "beyond relying on unverified statements of citizenship necessary to registering." It sets no verification process, no standard and no timetable, and says nothing about a ballot still unverified when counties finalize on Dec. 3. Read literally, that ballot would stay on hold. The only process the Secretary of State's canvass page describes for a mail ballot whose envelope fails verification is signature cure, in which a county contacts a voter about a missing or mismatched signature. That is not a citizenship check.

The coverage I reviewed as of Oct. 16 reports no judge, hearing date or motion for a temporary restraining order, although Blanche calls the filing an "emergency court action." It also does not say how many listed voters live in any county, or whether any returned a ballot. A separate case in Washington, brought by the UCLA Voting Rights Project, sought a restraining order on Oct. 15; the judge told the parties to report back by Friday, Oct. 16.

The voter at the other end of the list

Consider a naturalized citizen on the list. Nothing in the complaint gives her notice, a hearing or a deadline to respond. If a hold were ordered, her ballot would sit apart from the rest, and nothing in the complaint says how she would learn of it.

Al Jazeera and Reuters reported that Sooknanan said the SAVE database could contain outdated citizenship records that may misidentify naturalized citizens. Justice Ketanji Brown Jackson, dissenting on Sept. 25, cited the district court's finding of a risk that states might cancel the registrations of some recently naturalized citizens or force them to prove citizenship before voting. Reuters adds that voting-rights groups hold the same concern about this list. The complaint says USCIS checks for naturalization and derived citizenship. Outsiders cannot test that without the list.

Texas offers a caution, not a rate. Its SAVE-based pipeline differs from this one, but a Texas Secretary of State release cited by NPR said some 20 percent of 2,724 flagged voters were later found to be citizens and reinstated. Nobody should apply that to California.

Section 611(c) exempts a person whose parents are or were citizens, who lived permanently in the U.S. before age 16 and who reasonably believed they were a citizen. A "likely noncitizen" and a prosecutable noncitizen are different things.

Nothing in the complaint requires a voter to do anything. Los Angeles County recommends mailing ballots back at least seven days before Election Day and offers a free "Where's My Ballot?" subscription for tracking. Twenty thousand is about 0.087 percent, or somewhat less, of California's more than 23 million registered voters, a sliver in share but not to the person holding the ballot.

This is the latest California-versus-Justice Department fight, after Gov. Gavin Newsom's June claim that the department was investigating him and his wife. But this one has a clock. A mailed ballot can arrive as late as Tuesday, Nov. 10, counties finalize on Dec. 3 and the Secretary of State certifies on Dec. 11, and the complaint's "until" still has no end date.