The Justice Department warns California election officials they could face prosecution if they count ballots from voters it calls likely noncitizens

The fight over who gets counted in California now carries a criminal warning for the people doing the counting. In a letter dated October 16 and obtained by the Associated Press, Acting Deputy Attorney General R. Trent McCotter told Los Angeles County officials that if persons knowingly tabulate ballots cast by individuals identified by federal agencies as noncitizens, they risk becoming aiders and abettors to a federal crime.

The sequence ran fast. On October 13, McCotter wrote to California Secretary of State Shirley Weber and Los Angeles County Registrar Dean Logan giving them 48 hours to review a list of alleged noncitizen voters, delivered to the county on a password protected thumb drive, and to segregate any returned mail ballots from people on the list until citizenship is determined. On October 15, the Justice Department sued California in federal court, asking a judge to block counting of mail ballots from more than 20,000 voters on its list. On October 16 came the prosecution warning, and President Trump posted that California officials who count such ballots will go to jail for a long period of time. A First Assistant United States Attorney, Bill Essayli, said on Saturday that the department had asked California to set aside the ballots, not to remove the voters.

The federal claim and the state answer are different claims, and both are on the record. The department says Homeland Security officials compared California voter records with federal immigration information and describes the review as preliminary and continuing. It has not established that 20,000 noncitizens cast ballots. Registration, receiving a ballot and casting an unlawful vote are separate events. California officials dispute the basis for the likely noncitizen label and say eligible voters could lose their voice if officials act on unverified information. Logan said he did not consider the thumb drive a secure device and had not accessed its files when he made the letter public.

The numbers around the wider issue are small against the size of the electorate. The Associated Press reported the Justice Department has charged about 50 people with voting as noncitizens out of more than 227 million registered voters in the 2024 presidential election. Noncitizen voting in a federal election is already a federal crime. What is new here is the target of the warning: not only the voter, but the election worker who counts the ballot, sixteen days before a midterm election that decides control of Congress, as of October 18.