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Trump’s Election Disruption Is Here
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People hold signs reading “Protect Our Vote” during a news conference about protecting voting rights ahead of the November midterm elections, in Los Angeles, California. Photo by Patrick T. Fallon / AFP via Getty Images.Last Tuesday, eight days after California began mailing ballots to every active registered voter in the state, a letter from the Department of Justice reached Los Angeles County Registrar-Recorder/County Clerk Dean Logan. It arrived with a computer thumb drive holding the names of people the federal government claims to suspect are noncitizens. The password was handwritten on a note.
The letter, signed by acting Deputy Attorney General R. Trent McCotter, asked for something astonishing. It gave Logan and California Secretary of State Shirley Weber 48 hours to agree to set aside the ballots of anyone on the list whose citizenship they could not confirm.
Logan did not open the drive. He said doing so would conflict with his office’s privacy and data security protocols and that removing a voter requires verifiable information, “not assertions of unconfirmed data matching.”
Two days later, the Justice Department sued. The complaint, filed in federal court in Los Angeles, put a number on the list: more than 20,000 people the government calls “likely noncitizens.” DOJ wants a judge to order California not to count their mail ballots until their citizenship can be verified.
Californians have already started voting. There’s no time to verify that many voters’ citizenship, even if California wanted to. And the law doesn’t give the federal government the power to demand it. UCLA election law professor Rick Hasen put the suit’s prospects bluntly: “I expect this lawsuit to go nowhere.”
As I’ll explain below, DOJ and Trump may not even care whether the suit succeeds in court. They hope to have already made their point and prepared the ground for challenging the midterm results.
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A “reasonable belief” by this regime is worthless
The list started with California’s own voter roster, which the state makes available for purchase.
Homeland Security Investigations, the investigative arm of ICE, says it “reasonably believes” that around 20,000 noncitizens are registered to vote in California. The complaint does not allege, however, that any of them has returned a ballot.
So is a “reasonable belief” enough to force California officials’ hands?
The Trump regime’s legal theory is simple but deeply vulnerable. Federal law makes it a crime for a noncitizen to vote in a federal election, and under the Constitution’s Supremacy Clause, federal law trumps state law. So far so good. But DOJ goes further. It argues that California, now that it has been handed the names, would be knowingly helping people break federal law if it counts their ballots, so the court should override the state’s usual procedures for these voters.
That’s eyebrow-raising. “Preemption” ordinarily means a state law clashes with a federal one. But California has no law letting noncitizens vote in federal elections. The complaint effectively concedes the point, arguing only that “If California passed a law that allowed noncitizens to vote” in congressional races, that law would conflict with federal law.
California already takes measures to ensure this doesn’t happen. It requires every registrant to attest to citizenship under penalty of perjury, and state law requires that only U.S. citizens register and that ineligible registrants be removed.
DOJ nevertheless wants California to set those ballots aside and verify each voter’s citizenship before counting them. That verification would have to go far beyond the statement of citizenship every voter makes to register.
The department calls this “commonplace election relief when a ballot is called into question.” DOJ also maintains that it is not asking California to purge its rolls or cancel anyone’s vote—just “set aside” ballots from more than 20,000 registrants. Attorney General Todd Blanche framed the case in sharper terms: “State-facilitated voter fraud is unacceptable in the United States of America.”
But it’s hardly clear how this is “state-facilitated voter fraud” in any sense of the phrase. And by now, no one should just take DOJ’s word that these are actually noncitizens, given its history of making such wild claims.
Hoisted by its own paragraph
Paragraph 60 of the complaint admits how little the federal government itself can do:
“To be sure, the United States actively investigates and prosecutes incidents of unlawful voting. But it is not practicable or feasible for the United States to investigate before the 2026 election concludes thousands, let alone tens of thousands, of individuals that two federal investigative offices identified on the California voter roster as likely being sent vote-by-mail ballots.”
Two days before filing, DOJ gave California officials 48 hours to agree to withhold ballots pending citizenship checks. Hasen singled out that paragraph as the tell. “Always pay attention to the ‘to be sure’ paragraph for an oblique reference to the weakest part of the case,” he noted.
The admission also cuts against DOJ’s legal theory. The claim rests on California “knowingly” facilitating unlawful voting, while the government’s own description of the people on its list is “likely” noncitizens. California cannot “know” something the federal government says it cannot establish before the election.
The numbers have also shifted. Trump regime officials have claimed that as many as 190,000 noncitizens are on California’s rolls, yet the lawsuit now relies on about 20,000.
State officials also know that Nevada has already been through this. DHS first claimed up to 16,000 noncitizens were registered there, then lowered its estimate to 185. After reviewing the list, state election officials determined that all 185 were citizens. “You have provided nothing of substance to suggest otherwise,” Greg Ott, a Nevada deputy attorney general, wrote to DHS.
The timing raises its own questions. In July, Weber asked DHS to explain its methodology and how it had obtained California’s voter list, and gave the department until Aug. 3 to answer. According to David Becker, executive director of the Center for Election Innovation & Research and a former DOJ voting rights attorney, California never got that information before ballots went out. “They could have done that three months ago, and didn’t,” Becker said. “Instead, waiting until eight days after ballots had gone out.”
DOJ is seeking an injunction to force California to set aside ballots, but it helped create the very time crunch it now cites to support its claim.
Grasping at legal straws
The law isn’t on DOJ’s side here either.
For starters, the Constitution lets states set the “Times, Places and Manner” of congressional elections, subject to laws Congress passes. And the Supreme Court has held that setting voter qualifications “forms no part of the power to be conferred upon the national government” by that clause. On Oct. 9, U.S. District Judge Sparkle Sooknanan made the same point in striking down DOJ’s nationwide voter-roll program: “Congress has left that authority where our Constitution has always placed it: with the states.”
The statute DOJ relies on, 18 U.S.C. § 611, makes it a crime for a noncitizen to vote in a federal election and sets out penalties for the person who does it. Hasen reads that statute alongside the National Voter Registration Act and draws a clear line: The federal government can prosecute individuals who vote illegally, “but it cannot force states to purge voters from the rolls in violation of the NVRA.”
Even the statute itself is on shaky ground. On Oct. 1, U.S. District Judge David Leibowitz in Miami ruled that the federal law criminalizing noncitizen voting is unconstitutional, because only states can set voter qualifications, and dismissed the case against a Jamaican national living in Florida. The ruling does not bind the California court.
The Supreme Court has also ruled on how much proof of citizenship a state may demand for federal voter registration. In Arizona v. Inter Tribal Council of Arizona (2013), it held that the NVRA preempted an Arizona law requiring documentary proof of citizenship beyond the sworn statement on the federal registration form. DOJ now asks a court to make California verify citizenship “beyond relying on unverified statements of citizenship necessary to registering.”
The NVRA also bars states from running systematic programs to remove ineligible voters within 90 days of a federal election, with limited exceptions. That protection exists because hasty purges sweep up eligible voters who then have little time to fix the error. DOJ insists it seeks only to set ballots aside. “We didn’t ask you to remove them from your list,” Bill Essayli, the top federal prosecutor in Los Angeles, posted on X on Oct. 17. “We asked you to sequester their ballots so a judge can decide whether they may be counted.”
A ballot set aside still goes uncounted until officials verify the citizenship of a voter the government itself calls a “likely” noncitizen. Democracy Docket’s Jacob Knutson argues that the practical effect is a purge: The federal government hands over a list of people it says should not vote and demands the state act on it before ballots are counted. And California Attorney General Rob Bonta argues the Trump regime is pressing the state to conduct exactly the kind of last-minute purge federal law prohibits.
DOJ also runs into the Supreme Court’s own caution about late changes to election rules. In Purcell v. Gonzalez (2006), the Court warned that “Court orders affecting elections, especially conflicting orders, can themselves result in voter confusion,” and that “As an election draws closer, that risk will increase.” DOJ wants a judge to change how California handles ballots voters already have in hand, with just two weeks to go before Election Day.
But what about SCOTUS?
DOJ’s best hope is a line in the Supreme Court’s September order reviving the expanded SAVE citizenship database, which said “individualized inquiries” into particular voters remain “permitted under federal law during this period.” DOJ can argue that handing California specific names makes each check individual.
But even that footing is thin. The Court was addressing the federal government’s help with states’ own SAVE checks, and DOJ’s complaint says its California list was built “independent of SAVE.” The Court also left the reach of the 90-day provision for a case it will hear later this term, Republican National Committee v. Mi Familia Vota.
Bonta argues the demand also defies Sooknanan’s ruling, which found that DOJ ignored the risk that citizenship records “known to be unreliable” would lead it to demand that states remove U.S. citizens from their rolls. The California list rests on federal immigration records run through third-party software.
DOJ also comes to court with a dismal record. It has suffered more than two dozen defeats in its campaign to obtain state voter rolls. And in this case, it bypassed the Civil Rights Division, which lost those cases, filing through the deputy attorney general’s office instead. Justin Levitt, a former deputy assistant attorney general in DOJ’s Civil Rights Division, called the suit “a press release masquerading as a lawsuit,” adding, “it’s going to be difficult for a judge to get through this document without laughing.”
Threatening election officials with jail
On Oct. 16, a day after filing suit, DOJ raised the stakes. In a letter to Los Angeles County’s lawyers, copied to Weber and Logan, McCotter 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.” He added, “The legal consequences for either facilitating or ignoring a federal crime are significant.” McCotter supervises the DOJ’s Criminal Division.
The word “likely” from the lawsuit is now gone, replaced by “individuals identified by federal agencies as noncitizens” in McCotter’s threat. In his view, California election officials must take the federal government at its word, never a sound course these days. Recall that just days earlier, DOJ’s original demand had been for California to determine whether citizens had been mistakenly included on the list.
While this threat is disturbing, its legal footing is weak. Democracy Docket notes that under Supreme Court precedent, aiding and abetting requires an affirmative act furthering the crime and an intent to facilitate it. The federal government has already told a court it cannot establish before the election which of these voters, if any, are noncitizens.
Trump shared the letter on Truth Social and added, “They will all go to jail for a long period of time!!!” But, as Logan has said, the county cannot withhold or refuse to count ballots based solely on unverified allegations.
Three days after threatening prosecution, McCotter conceded the list could be wrong. “There may be some names on there who it turns out ultimately are citizens,” he told reporters on Monday. “We’re not perfect.”
The threat follows the script Trump issued in March. His executive order on mail voting directs the attorney general to “prioritize the investigation and, as appropriate, the prosecution of State and local officials” who issue ballots to ineligible people. In August, the Supreme Court let that order proceed, reasoning that the states lacked a “well-founded fear” that their officials would be prosecuted. As Marc Elias pointed out this week, the prosecution threats arrived less than two months later.
Arrests have now begun
While it has not directly prosecuted election officials, DOJ has already targeted Californians it claims are noncitizens who registered to vote or voted. But the numbers are paltry for a state this large.
On Monday, DOJ announced what it called “Operation Protect the Vote.” It charged 28 lawful permanent residents across California with election-related crimes and arrested 11 of them. McCotter said every defendant appears on the list of more than 20,000 names DOJ gave California, and Essayli declared, “Today’s arrests prove what we have been saying.”
Not so.
For starters, an arrest is not proof of a crime. Those charged are presumed innocent unless and until proven guilty beyond a reasonable doubt. Defense lawyers and California officials need time to examine the charges and the facts behind them, but given DOJ’s track record, there is ample reason for skepticism.
Further, the numbers point to something else entirely. Twenty-eight defendants is about 1 in 700 of the 20,000 people on DOJ’s list. The federal government alleges that 22 of them voted, one cast a provisional ballot and five did not vote at all. Those 22 alleged voters amount to roughly 0.0001 percent of California’s more than 23 million registered voters.
Even assuming a handful of votes were illegal, this does not a vast conspiracy make. Indeed, Democracy Docket counted roughly 25 to 27 allegedly illegal votes cited by DOJ across California’s last three general elections, out of more than 45 million ballots cast. That is about 0.00006 percent of those ballots.
The arrests also make Hasen’s point. When the federal government believes a noncitizen has voted, its tool is to investigate and prosecute that person. That is is what DOJ did here. None of it requires California to set aside 20,000 ballots. Yet the same day, the DOJ asked a federal court for a temporary restraining order setting aside all of those ballots, calling the 20,000 names “the floor of potential noncitizen California voters.”
A method to their mad voter suppression
The California suit, threats and arrests fit a pattern. DOJ previously demanded unredacted voter rolls from 49 states and D.C. Internal records show ICE’s investigative arm took in about 99 million voter records, 48.4 million of them obtained by Heather Honey, now a senior adviser to the ICE director and a longtime promoter of false claims about the 2020 election.
In July, in a preview of what would happen in California this month, Assistant Attorney General for Civil Rights Harmeet Dhillon warned election officials nationwide that they “could be subject to criminal liability” over noncitizens on their rolls.
Others have followed her lead. As early voting opened in Texas, U.S. Attorney Aaron Reitz of the Southern District of Texas released a video promising “no crooked local election administrators” and warning, “If you violate federal election law, I will hunt you down and prosecute you.” Reitz cited no examples of wrongdoing.
Emily Eby French, policy director of Common Cause Texas, said she was “really disappointed to hear anyone from the government threatening local officials when they should be supporting them,” and called the message “posturing… intended to scare voters out of using their legal right to vote.”
The intimidation doesn’t stop at threats of prosecution. DOJ now plans to send up to 1,000 election monitors to polling places nationwide. They could disrupt precincts where they appear. During Wyoming’s August primary, for example, two federal monitors tried to interview voters and examine voting machines in Cheyenne—conduct that Republican Gov. Mark Gordon called “aggressive, unexpected, disruptive.”
Built for November 4, the day after
DOJ’s suit is unlikely to win in court, but it may be built for a darker purpose. “I think this is a political document, potentially laying the groundwork for Trump to claim that the election results are illegitimate because California has not done enough to deal with noncitizen voting,” Hasen wrote.
We should expect that and prepare accordingly. After all, California suits Trump’s election disruption purposes nicely. It’s the country’s largest blue state. It mails a ballot to every active registered voter. And Trump has already attacked its slow vote counting. Whatever happens in court, a federal filing will remain on record asserting that about 20,000 likely noncitizens were sent ballots in a federal election, and the regime will try to spin that cotton into candy.
Election officials and Democrats have begun to warn that the regime will cite its own findings of a tainted vote to contest results that do not favor Republicans. “President Trump will use any tool, legal or not, to try and make sure he gets the results he wants this year,” declared Sen. Mark Warner of Virginia, the top Democrat on the Senate Intelligence Committee.
Beyond challenging the results as tainted by fraud, as he does with every election that doesn’t go his way, Trump has kept more drastic options on the table. We need to be aware of them, even while understanding that they are not likely to go far before courts block them.
The most worrisome gambit is a seizure of the ballots and voting equipment. Earlier this month, Trump reportedly met with Tina Peters, the former Colorado county clerk convicted of tampering with voting machines after the 2020 election, who has urged federal authorities to take voting machines into custody. Trump has said he regrets not seizing voting machines after the 2020 election, and he has refused to rule out invoking the Insurrection Act in connection with the elections. The FBI already seized ballots and other election materials from Fulton County, Georgia, in what could serve as a practice run. Election officials and state secretaries of state are preparing for this kind of assault, particularly in closely contested states and in California, where the state’s 52 House seats could decide control of the chamber.
Then there is the lurking specter of a “national emergency” or “martial law” following the election. When a conservative host told Trump in August that he had the right to declare a national security emergency for elections, Trump answered, “Let me just say that stranger things have happened. I’ll leave it at that.” Peter Ticktin, a lawyer who has represented both Trump and Peters, went further. He said that if many Republicans lose “and we can show that there’s something that was wrong with the election, then it could lead to a serious situation such as martial law or something.”
Let me be very clear about this: Neither an emergency declaration nor the Insurrection Act gives Trump authority to overturn election results or take over election administration. Any such attempt would face strong constitutional challenges. And even this Supreme Court has rejected his obvious sore-loser attempts at overturning the results of a free and fair election.
Still, election officials around the nation must now plan for scenarios they never had to consider before. Utah’s Republican lieutenant governor, Deidre Henderson, said her state has planned for a federal agent showing up at a polling place with a warrant. On Oct. 15, Wisconsin’s bipartisan elections commission told poll workers to notify local and state election officials immediately if FBI, ICE or DHS agents appear at polling places. In a lawsuit filed against DOJ, the Democratic National Committee told a federal court that McCotter’s letter to California “appears to be a plausible threat that DOJ will attempt to engage in warrant-based ballot seizure.”
In late August, Gen. Dan Caine, chairman of the Joint Chiefs of Staff, assured Sen. Elissa Slotkin (D-MI) that there were no plans to deploy troops to polling places or to seize election materials. And when asked this month whether he would accept the midterm results, Trump gave his usual two-faced nonresponse. “Of course I will. But we don’t want cheating,” the president said.
What we can do
The response needed from the opposition, and from all voters who want their voting rights protected, is now plain. We need a blue wave too big to wave away with weak election fraud claims. It must gather strength and wash ashore on Election Day. Voting early—including returning mail ballots promptly—can help reduce delays the president might exploit.
An early, actual Democratic lead on Election Day in decisive races would make any “stop the count” gambit from Trump harder to sell. In such a best-case scenario, which Democrats and anti-Trump independents can help deliver, the later-counted mail-in votes could deepen the margins of victory against the GOP, rendering his claims so much the harder to sustain.
Two weeks remain until Election Day. Vote early, vote angry, vote to rein in the would-be king.
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