Federal officials say holding those ballots until citizenship is verified would protect citizens’ votes without canceling any registration. State and county officials dispute the list, and a federal appeals court takes up the case on Sunday.
Nine days before Election Day, the Justice Department is asking California election officials to do something they say they have never been asked to do: pull aside the mail ballots of more than 20,000 registered voters whom federal immigration officials have flagged as likely noncitizens, and leave those ballots uncounted until the voters’ citizenship can be checked.
The department says the request is narrow. In an Oct. 13 letter cited in its court filings, it asked California to review the list within 48 hours and, for anyone whose citizenship the state could not confirm, to “segregate—not cancel—those individuals’ vote-by-mail ballots until their citizenship status can be determined.” The letter said: “This process will protect American citizens’ votes while preventing noncitizens from participating in the federal election in violation of federal law.”
State and county officials have refused. They say the list is unreliable, that federal law does not let the Justice Department direct how counties count ballots, and that the demand comes too late in an election already underway. Since Oct. 23, federal prosecutors have sent similar letters to individual counties, including Santa Clara, Contra Costa and San Francisco.
This Inquirer Investigation is based on the federal complaint and the sworn declarations filed with it, the briefs filed by the state and Los Angeles County, the counties’ own public statements, the Justice Department’s announcements and interviews with officials. It sets out what the government says it found, how it built the list, what the counties have found when they checked it, and what happens next.
The government’s case
The Justice Department sued California, Secretary of State Shirley Weber and Los Angeles County Registrar-Recorder/County Clerk Dean Logan on Oct. 15 in federal court in Los Angeles (United States v. California, No. 2:26-cv-12025). Its legal theory rests on the Constitution’s Supremacy Clause and a 1996 federal law, 18 U.S.C. § 611, which makes it a crime for a noncitizen to vote in a federal election. The department argues that when federal officials have told a state that specific registrants are likely noncitizens, state rules requiring election workers to count those registrants’ mail ballots are preempted by federal law.
It asks the court to declare that sending and counting those ballots after notice is preempted, and to bar tabulating them “until those individuals’ citizenship status can be verified.” In a filing on Oct. 19, the department described the request as modest. “If California verifies the citizenship of those whose ballots are segregated, California can and should tabulate their votes,” it wrote. “No one who is legally allowed to vote would be impacted.” It added: “After all, one vote cast by a noncitizen cancels one vote by an American.”
The complaint also points to features of California law that the department says leave the state open to ineligible voting. Every active registered voter is mailed a ballot 29 days before the election. The mail-ballot envelope warns that voting twice is a crime but carries no similar warning about noncitizen voting, and its signature statement does not ask the voter to affirm citizenship. Election workers are told to construe signature matches liberally. The department also cites news reports of a 2018 error at the Department of Motor Vehicles that improperly registered up to 1,500 noncitizens.
The administration’s urgency is tied to the count itself. In an Oct. 23 filing, the department said that “every minute of processing that occurs without segregating the ballots of suspected non-eligible voters causes untraceable disenfranchisement and dilution of the votes of United States citizens.” It noted that Los Angeles County has said it had processed more than 331,000 mail ballots since Oct. 11, and that once a ballot is separated from its envelope it cannot be traced back to the voter.
How the list was built
The 20,000 names did not come from the federal SAVE citizenship database, which the department says California has not used to check its rolls. Instead, according to sworn declarations from U.S. Citizenship and Immigration Services and Homeland Security Investigations officials, HSI “received what appeared to be the California voter roster for the general election of 2026” and forwarded it to USCIS around May 8. The complaint notes that California sells its voter file to qualified buyers under state law.
USCIS then enriched the voter records using what the declarations describe as a “reliable third-party data analytics and investigative platform,” paired them with immigration records, and scored the matches “to account for incomplete, outdated, or mismatched information.” The agency says it screened the results against State Department and Social Security Administration data to remove citizens and people who had died, and assigned each match a confidence level. “High confidence” meant a match that was “strong and consistent with multifield evidence supporting a strong identity link.”
Analysts in USCIS’s fraud detection directorate then manually reviewed every match, checked for citizenship derived through a parent and searched passport records, followed by a second-level review, according to the declarations. HSI ran its own quality review and “enrichment” across authorized sources “to reduce the risk that voters are mistakenly associated with the wrong immigration status.” On Oct. 13 the final list, “over 20,000” names, went to the Justice Department, the U.S. attorney’s office in Los Angeles and the Los Angeles County registrar, and was made available to the secretary of state. The department calls that number “the floor”; a USCIS official also stated that the agency “has identified a separate batch of more than 17,000 voting records potentially tied to noncitizens.”
The figures have shifted over the summer. In a July 16 letter attached to the complaint, Homeland Security Secretary Markwayne Mullin told Weber there “may be as many as 190,832 non-citizens registered” in California, including “81,336 California registrants for whom the name, date of birth, address and Social Security number match a non-citizen in our files.” Weber replied on July 23 that she had “serious doubts about the reliability of your data,” noting that her office had never shared its statewide voter list with federal agencies and that state law bars sharing Social Security numbers. She asked how the matches were made, including whether artificial intelligence was used, and where the list came from.
The government acknowledges the list is not perfect. “There may be some names on there who it turns out ultimately are citizens, we’re not perfect,” Acting Deputy Attorney General Trent McCotter told reporters on Oct. 19, according to NPR. “And that’s why we’ve asked California to cooperate with us.”
The 28 cases
The department’s strongest evidence that the list finds real cases came the same day. Under what it calls Operation Protect the Vote, federal prosecutors in all four California districts charged 28 lawful permanent residents with election-related crimes, and 11 were arrested. The charges include false statements on naturalization paperwork, fraudulent registration and, in the Eastern District, misdemeanor voting by a noncitizen. Defendants charged in the Northern District live in Petaluma, San Jose, Daly City, Hayward and San Francisco. The San Francisco Chronicle reported that 23 of the 28 are accused of voting illegally, casting 34 ballots since 2020. All of them are presumed innocent.
“Every illegal vote cancels out the vote of a lawful American citizen,” McCotter said in the announcement. “Each of the 28 defendants charged today appears on the list of more than 20,000 likely noncitizen registrants… California must verify the citizenship of those more than 20,000 registrants before mail-in ballots are counted.” Bill Essayli, the top federal prosecutor in Los Angeles, said: “Today’s arrests prove what we have been saying… California is mailing ballots to noncitizens, and they are refusing to comply with federal law, which makes it a crime for noncitizens to vote. The voting rights of American citizens must be protected.”
What the counties found
Los Angeles County, the only county named as a defendant, checked part of the list. In an Oct. 21 release, Logan said: “Of the 20,930 records submitted, only 7,035 (33.6%) had addresses within Los Angeles County. In a preliminary sampling of 200 records, approximately 43% had canceled voter registrations, and more than 70% had no voting history. These findings should not be mistaken for claims about citizenship.” In a court declaration described by NPR, a county elections official wrote that among sampled records with a “meaningfully reported” birthplace, “38.9% indicate that they were born in the United States.” The Justice Department says the county has not answered its request for details of how the sample was drawn.
In its Oct. 23 brief, the county argued that § 611 “regulates voters, not elections officials,” and that the federal list rests on “nothing more than suspicion,” noting that the government’s own declaration concedes the data may be “incomplete, outdated, or mismatched.” It said the government had the voter file in hand by May and that the urgency is “self-inflicted.” The county also said federal and state law require registrants to attest to citizenship, that returned mail ballots go through established verification procedures, and that naturalized citizens, whose earlier immigration records may not reflect their current status, are “especially prone to false matches.” A county official said in a declaration that the registrar “is not equipped or authorized to verify voter citizenship.”
The state, represented by Attorney General Rob Bonta’s office, argued that the government lacks standing, that its legal claim fails, and that the relief it wants would itself violate state and federal law. “All they provided was a list of people and nothing about why they’re purportedly ineligible,” Bonta said at a press conference, according to The Guardian. “If they have such information, we would be happy to review it, but they’ve provided none.”
The letters reach the Bay Area
On Oct. 23, U.S. attorneys began writing to counties directly. The Chronicle reported that the Northern District sent Contra Costa County 407 names and Santa Clara County 902. Merced County received 177 names from the Eastern District. Reuters reported that six of the letters, signed by Essayli, warned of “significant federal scrutiny and legal exposure” and said officials who count the ballots could be treated as “aiders and abettors to a federal crime.”
The Justice Department said in a statement reported by The Guardian: “We are asking each county election official to commit to working with us by providing the necessary information for DHS to quickly verify citizenship status. With their help, we can ensure the most secure election in California history.”
County officials described the letters differently. “This certainly is a unique letter that we’ve gotten,” said Santa Clara County Registrar of Voters Matt Moreles. “I can’t recall my 20-plus years in this county of receiving a letter like this from the Department of Justice.” Contra Costa County Clerk-Recorder Kristin B. Connelly said, “We aren’t doing anything wrong… Voters need to vote and not be intimidated.”
NBC Bay Area reported that San Francisco received a similar letter. A spokesperson for City Attorney David Chiu said: “San Francisco is confident in its elections and processes all registration information according to local, state and federal laws. This is clearly another ploy to interfere with the election 11 days before election day. We are reviewing the information and will determine any appropriate next steps.”
Asked by The Inquirer about the letter, John Arntz, director of the San Francisco Department of Elections, replied: “Attached is the letter that San Francisco received. For any additional statement on the matter, you can contact Alex Barrett-Shorter in the City Attorney’s Office.” The Inquirer also sought comment from the Justice Department, the secretary of state, the Los Angeles County registrar and the Brennan Center for Justice; none responded by publication.
Bonta, speaking on Oct. 24, called the letters an example of the department “politicizing and weaponizing the law to attack its enemies, and it is completely improper.”
Safeguards already in place, and their limits
Both sides point to the same safeguards and draw opposite conclusions. California registrants must attest to citizenship on the registration form, as federal law requires. Ballots go through signature checks, and noncitizen voting is a felony. The state says those rules, together with prosecutions of individual cases like the 28 announced this month, are the lawful way to deter ineligible voting. The Justice Department says the attestation is not verified, the mail envelope does not ask about citizenship, and once ballots are separated from their envelopes the error cannot be undone.
A separate federal case limits how the same data can be used in the field. On Oct. 21, U.S. District Judge Araceli Martínez-Olguín in San Francisco, in a suit brought by the California Nurses Association, San Francisco, Santa Clara County and others, barred HSI agents in nine states from field operations targeting people they “know, suspect, or should reasonably know or suspect are U.S. citizens,” or based “wholly” on USCIS matching data, through election night. The Department of Homeland Security said it “is laser focused on identifying, prosecuting, and removing aliens who vote and dilute the votes of U.S. citizens,” and added, “We have no plans to question or investigate people we believe to be U.S. citizens.”
What happens next
The case has moved fast. The government asked for a temporary restraining order on Oct. 19. After the case was reassigned twice, U.S. District Judge David O. Carter set a hearing for Oct. 27. The Justice Department said that was too late, filed a notice of appeal on Oct. 22 and asked the Ninth Circuit for an injunction while it appeals. The state told the appeals court that “there is nothing currently to appeal,” because the district judge has not yet ruled, and Los Angeles County has moved to dismiss the appeal.
A Ninth Circuit panel of Judges Mark J. Bennett, Patrick J. Bumatay and Gabriel P. Sanchez scheduled a 60-minute remote argument for 1 p.m. Pacific on Sunday, Oct. 25. The state argues that ordering counties to change how they process ballots this close to Election Day runs into the Supreme Court’s Purcell principle, which warns courts against late changes to election rules. The Justice Department argues that delay is what causes the harm, because each ballot counted without review cannot be retrieved.
Election Day is Nov. 3. Whatever the courts decide, the 28 criminal cases will continue, and the question of whether a federal list can hold back a vote in California is likely to outlast this election.
Anjali Venkatram covers national news and the federal policies, court rulings and trends that reach California, for National News. More from Anjali Venkatram
