Feds are suing California over voter fraud allegations. Experts tell voters: Don’t freak out

The U.S. Department of Justice has attempted to use a number of tactics in recent weeks to remove California voters they say are likely noncitizens from state voter rolls — despite the voting process having already begun.

Election security experts told LAist, however, that the federal government’s case is unlikely to succeed, and that voters should proceed filling out their ballots as normal.

“I don't think most people in the L.A. area or beyond will actually encounter any of the disruption that the administration is trying to project,” Loyola Law School professor Justin Levitt said.

The backstory

Last week, Department of Justice election officials sent a list of 20,000 California voters it says it has “high confidence” are not citizens. (L.A. County election officials said they received records on a thumb drive, which they could not open for security reasons.) Two days later, the Trump administration sued California for not complying with its request to use the list to remove any noncitizens from local voter rolls.

California on Tuesday filed an extensive response to the DOJ lawsuit, saying it “borders on the absurd.”

Separately this week, the DOJ announced it had filed charges against 28 people, accusing them of registering to vote as noncitizens.

What is the DOJ claiming?

DOJ representatives said Monday they are attempting to keep U.S. citizens’ votes from being canceled out by noncitizens.

“We have an election coming up next month,” Bill Essayli, first assistant U.S. attorney, said. “Our biggest priority is to safeguard the integrity of the election.”

Essayli suggested he may prosecute election officials who knowingly process ballots “once we’ve informed them who the non-citizens are” and indicated the DOJ is working on “many more cases.”

Regarding the list sent to state and local officials, DOJ officials also said they have “high confidence” — not complete certainty — that the people on the federal government’s list are noncitizens.

“There may be some names on there who it turns out ultimately are citizens,” Trent McCotter, acting deputy attorney general, said Monday. “We're not perfect, and that's why we've asked California to cooperate with us.”

In a court declaration filed today, L.A. County Assistant Registrar Monica Flores said the DOJ’s list is “unreliable.” Analyzing a sample of 200 records, she said a majority are not active voters, and nearly 40% of the records indicate the individual was born in the U.S.

The L.A. County registrar of voters said officials here did not comply with the request to use the federal list and began coordinating with state officials — a point DOJ officials stressed on Monday, with McCotter saying this is “an emergency of their own [California’s] creation.”

Rick Hasen, a UCLA law professor who runs the school’s Safeguarding Democracy Project, disagreed.

“The federal government didn't produce its list of voters or its methodology to California until just a few days ago, so this is not an emergency of California's own making,” Hasen said. “It is not the federal government's job to decide who is on voting rolls. That is a job that is given to states.”

A DOJ spokesperson declined to comment for this article beyond pointing to Essayli’s X social media feed.

What role will local election officials play?

In large part, Hasen and Levitt said officials will play the same role that they always have, even though more eyes will be on them. County election officials send out ballots, process and verify signatures, and reach out to voters if there are any outstanding issues. The registrar then has 13 days to report on ballots to the state, including provisional ballots and same-day registration ballots, and 30 days to finish counting them.

That said, Hasen said Essayli’s threat of possible criminal prosecution against election officials is “really dangerous” — even though he said these cases are also unlikely to succeed.

“We've got a threat of criminal prosecution against election administrators for not being aggressive enough in policing voting rolls to the Trump administration's liking,” Hasen said. “Even if they were negligent in how they policed their voting rolls, there's no criminal liability here.”

What should voters do?

Levitt, who previously worked on voting rights at the Justice Department, said he doesn’t think Trump’s DOJ is serious about the legal merits of their lawsuit against California.

“I can completely understand that people may be freaked out,” he said. “Part of what DOJ is doing is an attempt to freak people out.”

For their part, local officials have reassured voters that they should proceed to cast their ballots. In a statement, L.A. County Supervisor Janice Hahn called the DOJ’s actions “voter intimidation and a blatant attempt to undermine trust in our midterm elections.”

Levitt recommended voting as early as possible to give voters time to check their registration and resolve any issues. If you have concerns, he recommended visiting an early voting center in person.

Hasen encouraged voters to double-check the status of their ballots to ensure they’ve been processed and counted.

“We have very good ballot tracking,” Hasen said. “California is not going to simply start throwing out ballots from people who are on an unvetted federal list of supposed noncitizen voters.”

What’s the future of this lawsuit?

Hasen and Levitt said the legal problems with the federal government’s arguments can be traced back to federal law and the Constitution.

“The Constitution gives states the power to run elections subject to Congress passing laws that can override that,” Hasen said. “There's no congressional override that would give the federal government the authority to do this.”

That makes the DOJ’s case unlikely to succeed, the professors agreed.

“It's possible that a court might not even really deal with it at all,” Levitt said.

What about the people accused of voting fraud?

The charges announced this week against 28 people accused of registering or voting as noncitizens, however, may be more successful, depending on the evidence presented in each case.

“Isolated cases of alleged voter fraud occur in red and blue states alike, and they should be prosecuted wherever they occur,” a spokesperson for California Attorney General Rob Bonta said in a statement.

But Bonta noted that the 28 people charged represent 0.0001% of California’s registered voters. The percentage is about the same in L.A. County: The 12 L.A. County residents charged this week make up roughly 0.0002% of people on the voter rolls.