A federal judge in California has ordered the Department of Homeland Security to stop election related field operations aimed at finding noncitizen voters in nine states, ruling that the effort likely violates the Voting Rights Act's ban on voter intimidation. The order, reported on Thursday, October 22, comes less than two weeks before the November 3 midterm elections.
U.S. District Judge Araceli Martínez-Olguín issued the ruling in a suit brought by the California Nurses Association, National Nurses United, the Voto Latino Foundation, San Francisco and Santa Clara County, Al Jazeera reported. The states covered are California, Connecticut, Georgia, Missouri, Nevada, New York, Pennsylvania, Washington and Wisconsin.
What DHS was doing
According to Axios, the operations ran under the administration's Unlawful Voter Initiative, and court filings show officers were told to prioritize those nine states. The judge's order described a list of targets that DHS built from sources including state voter rolls and commercial data, Axios reported. Agents conducted field interviews about voters' citizenship, and some local offices posted photos of agents knocking on doors, Al Jazeera reported. The plaintiffs said some U.S. citizens were wrongly flagged and questioned.
The order bars field operations and interviews under the initiative that involve, or are likely to involve, U.S. citizens, Axios reported. It also blocks operations against likely citizens in states that rely on records produced by the administration's voter matching policy.
The judge's reasoning
Judge Martínez-Olguín found the plaintiffs had offered substantial evidence that the government's conduct was interfering with their members' work encouraging people to vote in the midterms, according to Axios. She wrote that the operations create "an objectively reasonable fear of law enforcement entanglements" that discourages citizens from helping others vote, Al Jazeera reported.
She also questioned the data. The judge warned of a high likelihood of error because there is no federal database of the citizenship status of U.S. residents, Axios reported. A whistleblower disclosure published in September by Democratic Sens. Chuck Schumer and Alex Padilla alleged that the initiative required federal employees to misrepresent themselves on state voter lookup tools, and the Associated Press reported that critics say DHS voter data can be unreliable and differ from state records.
Rochester station WHEC reported that the judge briefly put the ruling on hold to give the administration time to appeal, and that the investigation in the nine states "will remain on pause until polls close on Election Day."
The government's side
DHS defended the work. The department said its investigations are aimed at identifying and removing noncitizens who vote and that it has no plans to question people it believes are U.S. citizens, Al Jazeera reported. In court, government lawyers argued, according to Axios, that DHS reasonably used the best data available for its law enforcement role, even if the data was imperfect, and that the intimidation claims were too vague.
The administration has made noncitizen voting a central issue before the midterms. Days earlier, the Justice Department announced charges against 28 lawful permanent residents in California, including false statements on naturalization applications and fraudulent voter registration. Those defendants are presumed innocent. The department is also asking a federal appeals court to make California set aside mail ballots from about 20,000 people it calls likely noncitizens, which we cover in a separate story.
The plaintiffs welcomed the ruling. A lawyer for the groups said DHS "built its lists on bad data" and "never checked how often it was wrong," Al Jazeera reported. Benjamin Farley, supervisory counsel for democracy defense at the National Immigration Law Center, called the ruling "a clear rebuke" and said, "No armed federal agent is going to stop us from casting our vote."
How the intimidation law works
The Voting Rights Act makes it unlawful to intimidate, threaten or coerce anyone for voting or for helping others vote. Courts look at whether conduct would reasonably make people afraid to take part, which is why the judge's finding about a "reasonable fear" matters. Noncitizen voting is already a federal crime, and the open question in this case is how the government goes about finding it. For more on how citizenship questions play out in court, see our story on what it takes to revoke a citizenship.
Federal agents at the door weeks before an election is the kind of clash between law enforcement power and individual rights that the Two Taps legal panel of Daniel Rosenberg, Michael Dye and Lloyd Golburgh takes apart on the show.
Two Taps News stories summarize reporting and the analysis discussed on Two Taps and Friends. They are not legal advice. Read our standards.
