Earlier this week, on October 13, the Department of Justice (DOJ) sent an unusual letter to California Secretary of State Shirley Weber. The letter alleges that there are “likely numerous noncitizens registered to vote in the federal election in California.” According to the letter, the DOJ sent a list of the “likely noncitizens” to the Los Angeles County Registrar-Recorder Dean Logan. The DOJ has asked that Los Angeles County and Secretary Weber “review the list within 48 hours to determine whether any citizens are listed.”
This is highly, highly irregular. I do not know of a previous instance in which the federal government pushed for such a large election administration action in October of an election year.
California mailed ballots out last week. The state is now fully in election mode; some Californians have already voted, and election workers have a full plate for all of October.
And that brings me to my first (of many) questions regarding the Justice Department’s letter:
Why now?
Why send this letter one week into California’s election? Federal law enforcement has seemingly been investigating California’s voter rolls for the past year—it was in July that Homeland Security Secretary Markwayne Mullin alleged that California had more than 190,000 voters unlawfully registered. There’s a shared understanding in the election world that actions shouldn’t take place on the eve of an election. So why now?
Does this conflict with NVRA?
There’s also law that speaks to timing: the National Voter Registration Act (NVRA). The NVRA prohibits any systemic list maintenance—any en masse removal of registered voters—within 90 days of a federal election. That prohibition extends to the use of any broad database-matching programs to systematically identify any ineligible voters. The thinking here is that if there’s a false-positive (i.e., somebody who is removed from the voter rolls who shouldn’t have been removed) and if the removal is done well in advance of the election, it can be corrected without disenfranchising the voter. If the voter is inaccurately removed just a week before any election, it likely won’t be corrected, and the voter will likely be wrongfully disenfranchised. Does this DOJ letter offend this limitation of the NVRA?
Does this conflict with the Supreme Court’s ruling in Department of Homeland Security (DHS) v. League of Women Voters?
In September, the Supreme Court lifted a federal district court’s prohibition on using the federal SAVE program to perform citizenship checks of voters. However, in its ruling, the Court noted that the SAVE program could not be used for voter roll–wide citizenship checks within 90 days of the election, as that would violate the NVRA.
But the DOJ’s new letter almost surely is the product of the SAVE program, which would seem to violate the Court’s language in this case. Perhaps the DOJ will say that DHS used the SAVE program over the summer—outside the 90-day prohibition—but that the DOJ is only now getting around to sending letters. I think that’s a weak argument, as the important component of the NVRA prohibition (i.e., removing registered voters) is happening within the 90-day period. So does this letter violate the Supreme Court’s order in DHS v. League of Women Voters?
Does DOJ understand California voter registration?
The letter asks California to check DOJ’s identified voters to see if the state has proof of citizenship on file for the voter. But to register to vote in California, the registrant must check a box and sign an attestation under penalty of law that he or she IS a US citizen. If the person doesn’t do that, then he or she can’t register to vote. That proof of citizenship—attestation under penalty of law—is all that is required and is considered proof, under both California and federal law. So California will of course have this voter registration form—this proof of citizenship—for every voter identified by the DOJ. Does the DOJ not understand how voter registration works?
Does DOJ think it can shift the burden?
Given that every registrant in California has necessarily attested that he or she is a US citizen, the burden shifts to the Justice Department to prove that an individual registrant is not a citizen. But that’s not what the DOJ is doing here. The DOJ isn’t saying, “We have proof this voter isn’t a citizen.” It’s saying, “We have reason to doubt these people are citizens.” And then the DOJ wants to shift the burden to California election administrators to prove citizenship of the identified voters. But California election officials won’t have a passport or birth certificate on file for the voters—that’s not required in California to register. So the burden will necessarily shift to the individual voter to prove he or she is a citizen. But that’s not how election law typically works. Does the DOJ really think it can shift this burden?
Does the federal government not appreciate its own track record?
The notion of shifting the burden of proof to the voter seems even more unreasonable considering that, to date, the federal government’s suspicions of noncitizens voting have proven highly imperfect. As the New York Times recently reported, in Nevada, the federal government’s claims of noncitizens went “from 16,000 to 185 to zero.” And as I wrote recently at Declare News, in Maricopa County, Arizona, the federal government’s SAVE program initially identified thousands of noncitizens voting in the county. But that number soon went down to 60. Then it went down to 8. For a more thorough look at the imperfections of the federal government’s noncitizen allegations, see this excellent reporting from the Texas Tribune and ProPublica.
Why only Los Angeles County?
One of the weird things about the DOJ letter is that it alleges a California-wide issue (“likely numerous noncitizens registered to vote in the federal election in California”). But the DOJ only sent identified voters to the Los Angeles County registrar. Why? Los Angeles County only has access to, and authority to change, registrants in Los Angeles County. It can’t change the registrations of voters in the other 57 counties. I can’t think of a logical, business-case reason for only sending to Los Angeles County. Instead, it looks like federal government is cherry-picking Los Angeles County for political reasons. That would be distasteful.
Undoubtedly more developments to come. Stay tuned.
