In the weeks before Election Day, the Trump administration escalated its hunt for voter fraud and its pressure on election officials — especially in California — to crack down on illegal voting by non-U.S. citizens.
Now, with Election Day come and gone, election officials and civil rights attorneys are preparing for the administration to continue its search for noncitizens on state voter rolls, as well as what they see as intimidation tactics toward election officials.
"It's clear that there is this drive to try to conjure up facts that just don't exist. I don't think that's going to change," James Williams, county executive for California's Santa Clara County, told NPR. "So we fully are prepared to continue to deal with this."
In recent weeks, federal prosecutors announced criminal charges against dozens of people who are accused of voting or registering to vote without being a citizen. Yet compared to overall numbers of voters, noncitizen voting is exceptionally rare. And since summer, the administration has touted what turned out to be grossly inflated numbers of noncitizens on state voter rolls.
In mid-October, federal officials alleged they had found 20,000 "likely" noncitizens on California's voter rolls. The Department of Justice sued the state to try to force election officials not to count ballots of voters whose citizenship had not been verified. A federal judge and a federal appeals court rejected the DOJ's requests, and the U.S. Supreme Court declined to intervene.
In the days leading up to Election Day, with the lawsuit pending, U.S. attorneys in California sent grand jury subpoenas to several counties, asking for records related to how local officials responded to DOJ's demands.
Though DOJ dropped its lawsuit last week, it has not rescinded these subpoenas.
"We have ongoing cases and investigations in various states surrounding voter process," U.S. Attorney General Todd Blanche said at a Thursday press conference. "We are actively, and will continue to investigate election integrity cases criminally and civilly, and that wasn't expected to start or stop — no matter what the results of the election were last week."
But recent unfavorable rulings for the Trump administration have created new obstacles for future federal attempts to intervene on state voter list maintenance.
"Do I think they will still keep at this? I do, but there are just a lot of court losses that are going to be really difficult for them to maneuver around," Anna Baldwin, director of voting rights litigation at Campaign Legal Center, told NPR. "They've hit substantial roadblocks because it's a lawless program that Congress has never authorized."
Recent court orders reaffirmed that states have the authority to run their elections and called into question the credibility of the federal government's data on noncitizens.
One key ruling, which came down the night before Election Day, found that DOJ and the Department of Homeland Security lack any statutory authority to distribute lists of purported noncitizens to election officials. In that order, a federal judge in Washington, D.C., wrote that taking that action also violates the Privacy Act. The federal government is expected to appeal.
In an earlier order in October, a different D.C.-based judge vacated the DOJ's project of requesting unredacted voter rolls from states, seeking to compare that voter data to federal databases, and instructing states to remove suspected noncitizens. The ruling found those actions were unlawful and disenfranchised eligible voters. The DOJ has appealed.
The Department of Justice declined to comment on litigation or future plans, but said in a statement, "The Department will continue to enforce federal election laws and will evaluate matters based on the facts and the law."
Looming criminal proceedings and subpoenas to election officials
Federal prosecutors have vowed to continue tracking down noncitizen voting cases, as have some local prosecutors. San Luis Obispo District Attorney Dan Dow is investigating the potential noncitizen voters federal officials flagged in his county. He has so far charged one individual.
"It has always been a crime but I've never had a noncitizen case referred to me. When we got 63 of them, we said, 'We will look at them,'" Dow told NPR. "It is our duty to uphold California law."
Loyola Law School professor Justin Levitt, who was a White House adviser on voting rights in the Biden administration, said he expects "a trickle of actual follow-through on actual cases" of noncitizens voting. "And that is also entirely consistent with everything we knew for decades — which is that this does happen, but it doesn't happen very often."
What remains to be seen is whether the Justice Department will retreat from the criminal threats federal officials have waged against local election officials, or try to escalate those further.
In letters delivered to every California county in October, DOJ officials warned: "If persons knowingly tabulate ballots cast by individuals identified by federal agencies as noncitizens, they risk becoming aiders and abettors to a federal crime."
President Trump added on Truth Social: "They will all go to jail for a long period of time!!!"
In the days before Election Day, officials in Los Angeles County as well as Bay Area counties, including Santa Clara and Sonoma, received subpoenas from their local U.S. attorney's office to turn over records this month.
In Sonoma, the subpoena is for records about an individual the DOJ alleges may have voted in a past election without being a U.S. citizen, as well as records about how county officials responded to DOJ requests to segregate ballots of people on its list of possible noncitizens, according to Sonoma County Counsel Joshua Myers.
The Oct. 21 subpoena sent to Los Angeles County, which was reviewed by NPR, requests records related to how the registrar-recorder's office screens for unlawful voting by noncitizens, as well as records responding to federal correspondence, including the demand to segregate ballots.
The DOJ said it does not comment on alleged subpoenas. But the substance of the subpoenas has raised questions about whether there may be a criminal probe targeted at counties.
Williams of Santa Clara County declined to speak about the subpoenas but said criminal threats against government employees who are trying to lawfully administer elections "strikes at the heart of what it means to live in a free society."
Looking forward, Williams said he is hoping for a way to productively collaborate with the federal government again.
"We should be aligned — federal, state and local government — in facilitating every citizen exercising their right to vote. And of course, we want voter rolls that don't include noncitizens," he said. "There's no disagreement about that."
Inflated and inaccurate lists
Another hurdle for the federal government's efforts to publicize purported noncitizens on voter rolls is the inaccuracies in its tallies so far.
Trump claimed in July there were 250,000 noncitizens registered in four states, including in California. But state officials pushed back on the data, and federal officials admitted the earlier numbers were a "ceiling" of potential noncitizens. In mid-October, federal officials had sent California its list of 20,000 "likely" noncitizens registered to vote in the state.
The federal government has never maintained a complete list of U.S. citizens. Trump administration efforts to cobble together citizenship data from various sources have led to naturalized citizens being mistakenly flagged as noncitizens, and data experts have warned the federal government's methodology in California was likely to also lead to false matches.
The weekend before Election Day, a federal judge allowed data experts from University of California Los Angeles' Voting Rights Project to analyze the DOJ's list of 20,000 names. The analysis found 42% did not appear on California's current voter roll and that naturalized citizens were on the list.
Separately, several California counties have noted the lists from DOJ were riddled with duplicates and obvious inaccuracies.
Santa Cruz County's top election official, Tricia Webber, wrote in an email that of the 81 people DOJ had listed as suspected noncitizens registered to vote in her county, "more than half are not registered in Santa Cruz County; some names do not match any person currently registered or previously registered," and some dates of birth "were wildly inaccurate with some dates appearing well into the future like 2044."
Even DOJ attorneys acknowledged in court hearings under questioning from judges that there have been flaws with federal lists of likely noncitizens.
U.S. District Judge David Carter, a Clinton nominee, who was presiding over the federal government's lawsuit against California, had planned to hold proceedings that would assess the accuracy of DOJ's lists. That will no longer happen since the DOJ dropped its lawsuit.
For Loyola Law School's Levitt, questions remain about whether federal officials violated the Privacy Act by using California voter roll data for this project without following required public notice procedures.
And with Democrats winning control of Congress, lawmakers could hold hearings that probe deeper into how federal officials came up with their list, said David Becker, the executive director for the Center for Election Innovation and Research.
"I think we're going to have some very serious scrutiny of the Department of Homeland Security and their methodology as they assisted the administration in its failed effort to try to demonstrate there was widespread noncitizen voting in this country," Becker said.
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