The Department of Justice has warned California election officials that they could face criminal prosecution if they knowingly count ballots cast by non-citizens, escalating a dispute over voter eligibility ahead of the 2026 midterm elections.
In an October 16 letter, Acting Deputy Attorney General R. Trent McCotter warned Los Angeles County officials that knowingly facilitating unlawful voting on Election Day, November 3, could expose election workers to federal criminal liability, according to The Associated Press, which obtained the letter. The warning followed a lawsuit the DOJ filed on October 15 seeking to block California from counting ballots associated with approximately 20,000 people whom federal authorities have identified as non-citizens.
“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 DOJ warned.
First Assistant U.S. Attorney Bill Essayli reiterated the demand on October 16, urging California Secretary of State Shirley Weber and Los Angeles County officials to segregate the flagged ballots pending citizenship verification. President Donald Trump backed the DOJ's warning on Truth Social, writing, “They will all go to jail for a long period of time!!!”
The DOJ's lawsuit requests a federal judge to prevent California from tabulating the disputed ballots until federal officials verify the voters’ citizenship. According to the complaint, federal agencies compared voter-registration records with citizenship information to stop resident aliens from illegally voting in the midterms.
California’s automatic mail-ballot system facilitates unlawful voting by sending ballots to registered voters who may be ineligible to participate in federal elections.
Federal officials gave California 48 hours to review a password-protected storage device containing the flagged names and segregate the associated ballots, but California Democrat officials challenged the deadline and questioned the reliability of the federal government’s information.
The DOJ cites 18 U.S.C. § 611, which prohibits non-citizens from voting in federal elections, and 18 U.S.C. § 2, which establishes liability for aiding and abetting federal crimes. The department argues that knowingly facilitating unlawful voting could expose election officials to prosecution.
The statutes, however, address different legal questions, according to some legal experts. Section 611 prohibits specified voting by non-citizens; Section 2 does not independently establish that an election official committed a crime simply by processing a ballot. Prosecutors would need to establish the elements of an underlying offense and the official’s legally sufficient knowledge and participation.
The lawsuit also brings up whether the federal government can obtain a court order requiring California to withhold ballots based on its identification of voters as likely non-citizens. The DOJ argues that federal law preempts state practices that facilitate unlawful voting. California officials counter that the government has not adequately established the flagged voters’ ineligibility and that excluding ballots without reliable verification could disenfranchise eligible citizens.
The lawsuit forms part of the Trump administration’s broader effort to compare state voter-registration records with federal immigration and citizenship databases. Federal officials say the reviews help identify ineligible voters and prevent widespread voter fraud.
In July, Homeland Security Secretary Markwayne Mullin sent letters to California, Nevada, New Jersey and Pennsylvania alleging that as many as 250,000 non-citizens were registered to vote across those states.
Nevada officials have also challenged federal identification methods after reviewing approximately 1,500 people flagged as suspected non-citizens and declared that all were eligible voters.
In late August, federal prosecutors in Los Angeles announced the arrest of Darwin Jonathan Rivera Flores, a Honduran national charged with two felonies for unlawfully registering to vote in California and falsely claiming U.S. citizenship.
The DOJ lawsuit against California will test the limits of federal intervention in state election administration. The court’s ruling on the DOJ’s emergency request will determine whether California must segregate the disputed ballots while authorities verify the voters’ citizenship, with Election Day approaching.