Trump’s Department of Justice has sued California elections officials, claiming that “over 20,000” registered voters in California are illegal aliens and ineligible to vote. The suit seeks to enjoin California

from tabulating in federal elections vote-by-mail ballots received from individuals identified by the Federal Government as likely noncitizens until those individuals’ citizenship status can be verified.

To understand the legal, factual, and logical problems with this suit, some background is necessary.

First, while “over 20,000” sounds like a large number, it represents a tiny fraction of the 23,164,977 registered voters in California — 0.000863, or 0.0863% of the total. The likelihood that any federal election in California would be decided by this margin is effectively zero.

Second, the U.S. Constitution gives states like California — not the federal government — the right to set the “time, place, and manner” of elections. (Article I, Section 4, Clause 1). The President has no power to alter the states’ election rules. Yet this is exactly what the DOJ’s lawsuit seeks to accomplish.

Third, the “SAVE” database that DHS and DOJ used to identify supposed “non-citizen voters” has been shown to be largely inaccurate. This is not surprising, since it was originally developed to assist the federal government in determining eligibility for federal benefits, not for use as a voter-registration screening tool.

Many examples of its inaccuracy exist. In Utah, the state used the SAVE database in connection with the State’s own audit of registered voters. The SAVE database flagged 8,917 registered voters as non-citizens, but the State’s manual review showed only 27 were actually non-citizens (25 more were probable). In Nevada, the Department of Homeland Security (now lead by the Trump acolyte and rabidly conservative former Oklahoma Senator Markwayne Mullin) originally flagged almost 16,000 registered voters as non-citizens, but when pressed could only provide 185 names for review. After investigating these 185 registered voters, Nevada determined that all of them were citizens. (Sources and other examples here and here.) So it’s likely that most of the “over 20,000” voters referenced in the DOJ lawsuit are actually citizens who have a right to vote in the upcoming election, or not registered to vote at all.

After this post was drafted, two more stories came out confirming the inaccuracy of the DOJ’s “over 20,000” figure.

• Los Angeles County checked a sample of the “over 20,000” names on the SAVE list. It found that one in four names on the list had a birthplace within the U.S., indicative of citizenship, and that over half the names already had registrations that had been cancelled or were inactive. Three-quarters of the names in the sample had never voted.
• On Monday, the DOJ brought criminal charges against non-citizens it alleged had voted in past California elections. The number of individuals charged was … 28. That’s four orders of magnitude less than 20,000. Twenty-eight is an astonishingly tiny 0.00012 percent of all California registered voters. And at least one of the 28 says he has never voted.

The MAGA response to evidence proving that non-citizen voting is a vanishingly small occurrence is always the same: ‘But we don’t know how many more there are that we didn’t catch.’ Experts in the field of logic refer to this type of argument as “blowing smoke out your ass.” ‘But there could be’ isn’t evidence, and it isn’t an argument, it’s just a MAGA fever dream.

Fourth, only U.S. citizens can register to vote in California. Elections Code section 2101(a) says:

A person entitled to register to vote shall be a United States citizen, a resident of California, not imprisoned for the conviction of a felony, and at least 18 years of age at the time of the next election.

When registering to vote in California, every person must sign an affidavit swearing, under penalty of perjury, that they are (among other things) a U.S. citizen.

Source: https://elections.cdn.sos.ca.gov/pdfs/quick-guide-vrc.pdf

Thus, the DOJ’s allegation in the lawsuit that “[California] knows that noncitizens might be registered to vote, and it knows the names of such individuals” is false. What the California “knows” is that every person who registered to vote in California swore under oath that they were a U.S. citizen. It also knows that the SAVE database is unreliable. California’s decision not to automatically disenfranchise registered voters just because Trump’s DHS and DOJ say so is rational and permitted under the U.S. Constitution, particularly given that Election Day is just two weeks away.

Fifth, aside from the substantive problems with the SAVE database and DOJ’s lawsuit, courts routinely delay ruling on elections-related lawsuits until after an election has taken place. This is because the outcome of the election may make the claims in the lawsuit moot, or because the issue can be raised as an challenge to the outcome of the election. This fall, races for the House of Representatives are the only federal elections on the California ballot. If none of those races ends up being closer than the number of non-citizens alleged by DOJ to be registered in that district — likely to be the case given that non-citizens only account for 0.0863% of registered voters even if the SAVE database is 100% accurate — then it’s a “no harm, no foul” situation: even if every alleged non-citizen voter had voted for the winner, the outcome would have been the same without their votes. In the almost impossible case of a outcome difference of less than 0.0863% of registered voters, there would be time post-election to check whether any non-citizen’s did, in fact, vote in that race, and to adjust the outcome accordingly.

Sixth, the filing of the lawsuit is contrary to the DOJ’s own internal policies, which are unequivocal:

The Department has long recognized that the States – not the federal government – are responsible for administering elections, determining the validity of votes, and tabulating the results, with challenges handled by the appropriate election administrators, officials, legislatures, and courts. The Department has a limited role in these processes and should generally avoid interfering or appearing to interfere with election administration, tabulation, validation, or certification.

Federal prosecutors and agents may never select the timing of any action, including investigative steps, criminal charges, or statements, for the purpose of affecting any election, or for the purpose of giving an advantage or disadvantage to any candidate or political party.

Sections 9-85.300, 9-85.500 of the DOJ’s Justice Manual. That the Trump DOJ brought the case two weeks before the election shows that the current DOJ is not interested in “justice,” but rather in furthering Trump’s political interests. Something not at all surprising given that the DOJ is led by Trump’s partisan, personal lawyer.

But prevailing legally in this case isn’t Trump’s goal. The case is just one more plate of spaghetti thrown against the fake “election fraud” wall Trump has been constructing since 2020. It’s another (lame) pillar in Trump’s plan to overturn the results of the mid-term election if Republicans lose control of the House or the Senate.

The plan goes like this: Say Democrats retake the House by a slim margin. There are several ways that anti-democracy Republicans could try to stay in power. In all of these scenarios, bogus cases like U.S. v. California will be trumpeted by Republicans and right-wing media to support their attempts to reverse the election results.

On the face of it, any attempt by Republican house members to exclude newly-elected Democrats from the House should be precluded by the Supreme Court’s decision in Powell v. McCormack (1969). In that decision, the Court held that the House’s power to exclude members from being seated reached only to the “standing qualifications prescribed in the [Article I, Section 2 of the] Constitution,” i.e., at least twenty-five years old, a U.S. citizen for seven years, and an inhabitant of the state in which elected. It does not allow the House to consider election issues which, as noted earlier, are the province of the states.

However, given the Trump Supreme Court’s willingness to overturn precedent and its recent penchant for issuing rulings favoring conservative political interests, it is well possible that this Court would refuse to follow the Powell precedent, and allow the Republican majority in the existing House to refuse to seat newly-elected Democrats by using Trump’s baseless “stolen election” theory.

Other ways to overturn the election results also exist. Just last year, the House Speaker Mike Johnson refused to administer the oath of office to a Democrat who had won a special election in Arizona for a period of fifty days after her election. Presumably Johnson could similarly delay administering oaths of office to the Democrats he/Trump say won “stolen elections.” This would keep the current Republican majority in power indefinitely (or until a court orders Johnson to administer the oaths.

Johnson also has the power to fire the Clerk of the House and replace him with a loyalist who will to his/Trump’s bidding. (House Rule No. 2.) This is significant because the Clerk of the existing House creates the roll of new members of the next house:

Before the first meeting of each Congress the Clerk of the next preceding House of Representatives shall make a roll of the Representatives-elect, and place thereon the names of those persons, and of such persons only, whose credentials show that they were regularly elected in accordance with the laws of their States respectively, or the laws of the United States.

2 U.S.C. Section 26. Thus an unscrupulous, Johnson/Trump-appointed Clerk might leave off of the roll any Democrat prevailing in an alleged “stolen election,” even if there were no good evidence supporting that claim.

Prior to January 6, 2020, I would have said that most Republican House members (and Senators) have enough of a commitment to (little-“d”) democratic government, and to respecting the outcomes of elections, as to make the preceding scenarios impossibly unlikely. But after the failure of Republicans to impeach Trump after the January 6 ransacking of the U.S. Capitol, and their failure to put any reins or constraints on Trump during his second term, I no longer believe that. Republicans have shown they have no loyalty to the constitutional order; power is all they care about.

Perhaps I will be proven wrong. Perhaps even MAGA Republicans aren’t willing to overturn the results of an election. Perhaps they will step back from throwing the country into a crisis unlike any seen since the Civil War. Perhaps enough of them will choose country over party.

But then: Mike Johnson, Andy Biggs, Paul Gosar, Lauren Boebert, Mike Collins, James Comer, Elise Stefanik, Max Miller, Nancy Mace, Ralph Norman, Ronny Jackson, Tim Scott, Marsha Blackburn, Katie Britt, Darline Graham, Chuck Grassley, Josh Hawley, Ron Johnson, Mike Lee, Mitch McConnell, Rick Scott, Tommy Tuberville.

Ted Cruz.

Not a group I’m prepared to rely on to do the right thing.

So be wary of, and push back on, the right’s continuous push to denigrate and call into question the trustworthiness of our system of elections. It’s a big lie, repeated over and over despite all evidence to the contrary, designed to set the stage for Republicans to keep power illegitimately even if the voters reject them.

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