Federal list methodology and 200-record sample sharpen California ballot list dispute

Federal government says it is not using the SAVE database

A separate court filing on Monday by Nicolas Bartell gave the most detailed account yet of the methodology used by the federal Fraud Detection and National Security Directorate within U.S. Citizenship and Immigration Services to develop a 20,000-name list on California’s voter rolls. Nicolas Bartell, the directorate’s associate director, wrote that the agency cross-referenced publicly available voter-registration data with a combination of data from a third-party data collection site, Department of State records and Social Security Administration records, and used an individual agent to review the names of people on the voter rolls whose citizenship could not be verified using government data. The directorate is a specialized division within U.S. Citizenship and Immigration Services. The federal government is not using the SAVE database, which judges elsewhere have ruled illegally aggregates sensitive personal data and risks purging eligible voters from the rolls.

The filings arrive as U.S. District Judge David O. Carter will hear arguments Tuesday afternoon in Los Angeles on whether the Justice Department can bar California from counting the ballots of some 20,000 people until it can confirm they are U.S. citizens. Voting is underway statewide, with a week left before the midterm election concludes Nov. 3.

The dispute also turns on whether the list is accurate in the first place, and the two sides described the same 200 records differently. Assistant Registrar-Recorder Monica Flores wrote that her staff went through a sample of 200 records from the federal list of 20,000 names and found the sample included canceled or inactive registrations, individuals with no voting history and voters who appeared to have been born in the United States, which the filing notes “is strong evidence of citizenship.”

Bartell said the federal Fraud Detection and National Security Directorate re-checked those 200 records and found that only four likely had citizenship and one person was dead. Elsewhere in the filing, Bartell said the investigation was “ongoing” and noted that at least 189 records have “minor data discrepancies”; he did not say whether those records overlapped with Los Angeles’ sample.

Local election officials offered conflicting testimony in which they described serious obstacles. Clinton Curtis, a county registrar in Shasta County, testified in a sworn declaration submitted by the federal government that setting apart ballots flagged by the Justice Department would be feasible. “In my experience, locating and segregating challenged ballots is entirely possible and not catastrophic,” Curtis wrote. Flores argued in court filings that it would be impossible to set apart votes for immigration status verification once they have been counted. Voting information is confidential, she said, noting that once a ballot is mailed in, it is separated from its envelope with its individual voter identification markings, making it impossible to verify based on information provided by the federal government.

California officials said in court filings that the lawsuit came too late and warned that any effort to heed the Trump administration’s requests could potentially “disenfranchise legitimate voters,” delay certification of the election and “cause general uncertainty in the election results.” The Republican administration sued election officials in the heavily Democratic state in mid-October, accusing them of failing to meet a 48-hour deadline to review the list of 20,000 names it alleged were likely noncitizens on the state’s voter rolls. The federal government is asking Carter to block the state from counting those ballots until the voters’ immigration status can be verified.

The federal government had sought an emergency ruling from the 9th U.S. Circuit Court of Appeals before Tuesday’s hearing but was rebuffed by a divided panel. Two of the panel’s three judges echoed California’s concerns after oral arguments Sunday. The ruling mainly called it premature for an appeals court to get involved before the district court could hear the case, while the two judges wrote separate concurrences making clear they would not support setting aside the ballots. The dissenting judge argued that both state and federal law bar noncitizens from voting and that this compels California to vet potentially illegal ballots before they are counted, writing that the government’s failure to obtain that vetting would cause irreparable harm to the election.

The dispute comes as noncitizen voting has been a key focus of President Donald Trump’s administration while U.S. voters decide which party will control Congress for the rest of his term, though available data indicate that the illicit practice is exceedingly rare.

California mails ballots to all active registered voters among the state’s roughly 23 million electorate, and more than 3 million voters statewide have already cast ballots.

Both sides have placed the list’s accuracy and officials’ ability to segregate ballots at issue before the court. The hearing will determine whether Carter grants the government’s request to block the state from counting the challenged ballots pending verification.