How Trump’s Noncitizen Voter Lists Could Turn Close Midterm Races Into Legal Battles

The Trump administration’s lists of suspected noncitizen voters could become a tool for challenging close results in the November 3 US midterm elections, even as state officials and researchers question whether the people identified have been correctly classified. The Justice Department has sent letters to election officials in five states saying it had identified noncitizens on their voter rolls, and sought to stop ballots linked to some of those identified from being counted.

In California, where the administration identified 20,930 people as “likely non-citizens”, an analysis submitted in court found that 42 per cent of the names did not appear on the state’s current voter files.

Noncitizens are barred from voting in federal elections, but appearing on a government list does not establish that someone is a noncitizen, is currently registered or has cast a ballot. The administration says it is protecting election integrity; critics argue that unreliable data and demands made close to polling day could put eligible voters’ ballots at risk.

How the administration compiled the lists

The federal government does not maintain a central list of US citizens who are registered or eligible to vote. The Trump administration has sought state voter-registration records, including unredacted information, and matched them against federal databases to identify people it believes may not be citizens.

According to Reuters, the administration had sent letters to election officials in California, Washington, New Jersey, Pennsylvania and Nevada by October 30. The Department of Homeland Security obtained at least partial voter-roll data from at least 47 states, typically including names, addresses and registration status.

“Close elections are not rare, and every illegal ballot cancels out the vote of an American citizen,” Justice Department spokesperson Kiersten Pels said in a statement quoted by Reuters. A Reuters investigation found that 129 noncitizens had been federally charged with illegal voting since the relevant statute was enacted in 1996. The cases included instances involving confusion or administrative errors rather than intentional fraud. The figure refers to charges, not convictions.

Why the lists are facing questions

In Washington, the Justice Department asked the state to set aside any midterm ballots received from more than 400 people it alleges registered without US citizenship, pending verification of their eligibility. In a letter to Secretary of State Steve Hobbs, the department said the group had cast about 1,500 votes in previous elections.

Acting US Attorney Neil Floyd said the 405 people identified so far were “the tip of the iceberg”. Hobbs, whose office was reviewing the request, criticised its timing: “The timing of this request — one week before the General Election — is no doubt intended to cast unfounded suspicion on the results.”

The Associated Press reported that one person on the list had last voted in 1994. Previous investigations also produced fewer cases than initial allegations suggested: Nevada found no noncitizen voters among 1,500 people initially suspected, while a Maricopa County review reduced 207 possible cases to eight. In Los Angeles County, a sample of 200 records included cancelled or inactive registrations, people with no voting history and voters who appeared to have been born in the United States.

The administration sued to prevent ballots associated with its list of 20,930 people from being counted. A court filing by the Coalition for Humane Immigrant Rights included an analysis by two University of California, Los Angeles, data scientists. Al Jazeera reported that 8,880 names — 42 per cent of the list — did not appear in California’s current voter files. The analysis also found that thousands of people on the list were confirmed US citizens or could correspond to US citizens. A missing match in current voter files does not, by itself, establish a person’s citizenship status.

The legal fight over federal and state authority

The California dispute centres on whether the Justice Department can require a state to set aside ballots on the basis of its list, rather than have eligibility determined through established state procedures. The Constitution’s Elections Clause gives states authority over the time, place and manner of congressional elections, while Congress can regulate federal elections. The administration argues that federal authorities must be able to enforce laws against noncitizen voting; California says its safeguards are sufficient and has challenged the demand.

On October 28, a federal judge rejected the Justice Department’s request to block ballots linked to the 20,930 names. In a 2-1 decision on October 30, the Ninth Circuit denied the administration’s emergency appeal, citing a “material risk” of disenfranchising eligible voters. The majority held that, in this case, Section 611 did not clearly authorise the specific ballot-segregation order sought by the government. It did not rule out the possibility that the law could override state election procedures in other circumstances. Al Jazeera quoted the court majority as saying: “We decline the United States’s invitation to contravene the Elections Clause by undermining the Constitution’s plain text.”

It did not establish that every person identified by the government was eligible to vote; it found that the government had not justified the emergency intervention it sought.

How the lists could affect the midterm results

The lists could have consequences even where courts refuse to set aside ballots. Under most state laws, Reuters reported, only candidates or voters can challenge results. A losing candidate could argue that suspected noncitizen votes made it impossible to determine the rightful winner; the Justice Department could also pursue other legal routes to block certification.

Such challenges would face substantial legal hurdles: reviews have found US citizens among those flagged, and the lists do not establish that everyone identified voted or that an unlawful vote changed a result. They could nevertheless be used to question narrow victories or seek further scrutiny before certification.

Republicans are seeking to retain control of the House and Senate, while Democrats are trying to regain it. Noncitizen voting in federal elections is illegal, but a database match is not proof of a violation. Treating suspected cases as established illegal votes risks turning an effort to enforce election law into a dispute over the ballots of eligible citizens.