Justice Department's flawed lists fail the California voter test

By Adele Rutherford · Reporting from Atlanta · October 22, 2026

The Justice Department is wrong. It is attempting to use a criminal statute to force a civil administrative change based on data that cannot survive a basic audit. The Department seeks an emergency order to segregate ballots from 20,000 people it labels as likely noncitizens. This is not a request for precision. It is a demand for a purge.

A sample that breaks the case

The government's data is a ghost. Los Angeles County election officials conducted a preliminary analysis of 200 individuals from the federal list. According to the Los Angeles Times, 38.9% of those individuals indicated they were born in the United States, which Monica Flores wrote in an affidavit is strong evidence of citizenship. As NPR reported, that is not a margin of error. It is a failure of the tool.

The review also found that 71.2% of the sample had no record of ever voting. In another set of records, registrations were canceled or inactive. This is the "high confidence" floor the government is using to justify an emergency restraining order.

The Justice Department relies on third-party commercial data and law enforcement sets. It is a methodology of shortcuts. Homeland Security official Nicolas Bartell recently identified another 17,000 California voter records potentially tied to noncitizens. This suggests the government is guessing in batches.

The record shows this happens elsewhere. A state review in Nevada found that 185 voters questioned by the administration were all citizens. When the federal government uses commercial lists to identify targets, the error rate is the only constant.

The reach of a criminal statute

The government's strongest case rests on 18 U.S.C. § 611. This is a criminal statute. It prohibits noncitizens from voting in federal elections. The Justice Department argues that California is practicing willful blindness. Kiersten Pels stated that the state cannot facilitate the violation of federal law.

This argument is a sleight of hand. A criminal prohibition on an act is not a civil mandate to alter state election machinery. The government is trying to turn a law used for prosecution into a tool for pre-election sequestration.

If the other side held this tool, the danger would be clear. Imagine a federal agency using "commercial data" to flag likely citizens for removal. The process would be a disaster. A rule that only works while your people hold power was never a rule.

Here, the process is a black box of third-party software. It lacks the individualized evidence required to strip a citizen of their ballot.

A pattern of federal intervention

The long record predicts this outcome. Federal officials often attempt to override state election administration by claiming a crisis of legitimacy. This time is no different. The mechanism is the same one seen in the 2020 United States presidential election. In that instance, the administration used claims of widespread voter fraud as a pretext for federal intervention in state election administration.

The current effort is a continuation of that strategy. Donald Trump has pursued an aggressive enforcement crackdown on voter rolls during his second term. He has threatened local officials with jail if they resist these purges. This is not law enforcement. It is pressure.

The Democratic National Committee has filed a lawsuit in D.C. to block this campaign. They describe the lists as shoddily compiled target lists. Democracy Docket notes that the lawsuit argues the administration uses these claims as a pretext to seize control over elections.

California officials argue the request is unfeasible so close to the election. This is a weak administrative plea. Claims of administrative unfeasibility often fail when the law is clear. But the law is not clear here. ABC News reports that the government has no statutory authority to demand the segregation of ballots based on a "likely" list.

The government does point to real crimes. Federal prosecutors charged 28 people across California with election-related crimes. The secretary of state's office has complied with subpoenas for records since August. These are individualized cases. They are the proper way to enforce 18 U.S.C. § 611.

The government's "ceiling" is a fantasy. Homeland Security Secretary Markwayne Mullin alleged there may be as many as 190,832 noncitizens registered to vote in California. This number is a political signal, not a legal fact.

Judge David O. Carter now oversees the case. He previously rejected the administration's efforts to obtain unredacted voter files. He understands that the executive branch cannot use statutory tools to disregard the separation of powers.

Judge Carter should block the Justice Department's request. The government cannot repurpose a criminal statute into a broad civil mandate to sequester votes. To do so would allow a flawed algorithm to override the constitutional right to vote. The Justice Department has failed to provide the individualized evidence necessary to justify such a drastic intrusion.

Justice Department's flawed lists fail the California voter test

A sample that breaks the case

The reach of a criminal statute

A pattern of federal intervention

Sources