Orange County election officials are waiting to hear back from the U.S. Department of Justice on how to proceed with a federal prosecutor’s request to help to determine the citizenship status of 1,754 people.
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Bob Page, Orange County Registrar of Voters, said Monday, Oct. 26, that neither his office nor Orange County’s office of county counsel has heard back from the DOJ regarding a letter and a USB drive it sent late Friday to Orange County Clerk-Recorder Hugh Nguyen.
The DOJ, on Friday, Oct. 23, hand-delivered a letter to Nguyen and asked for help determining the citizenship status of 1,754 people it had identified as “likely aliens” within 48 hours. Nguyen also received a USB drive containing a list of the 1,754 people in question.
For those whose citizenship cannot be determined, the federal government asked that election officials “segregate — not cancel — those individuals’ vote-by-mail ballots until their citizenship status can be determined,” First Assistant U.S. Attorney Bill Essayli said in the letter obtained by The Orange County Register.
But in a letter Saturday, Orange County counsel told Essayli that the Justice Department “mistakenly sent” the letter and the USB drive — which “may contain confidential, sensitive, or otherwise protected information” — to Nguyen, since the Page’s office is responsible for conducting elections and maintaining voter registration records.
County counsel said in its letter that Nguyen retained the USB drive “in a secure manner” pending DOJ instructions, asking whether a Justice Department official should retrieve it in person or if it should be sent back to DOJ by mail.
Page, on Monday, said the Justice Department had so far not responded to county counsel seeking guidance about how to handle custody of the letter or the USB drive, or how Page’s office should proceed given that the 48-hour timeline had passed.
Orange County officials have not formulated a specific approach in terms of responding to the DOJ’s letter, its 48-hour timeline, whether to comply or how to do so, Page said.
“This is a deadline that’s not enforceable; it’s just a deadline they’re saying in their letter,” he said. “Bottom line is, we don’t want non-citizens to be voting in this election, but at this point we don’t know how reliable their list for Orange County is. We haven’t had a chance to look at it.”
Federal prosecutors sent similar letters to county registrars across California on Friday. It’s the latest escalation in a legal battle between California and President Donald Trump’s Justice Department, which has recently focused on the state in its effort to root out noncitizen voting ahead of the Nov. 3 midterm elections. Data shows illegal voting by people who aren’t U.S. citizens is incredibly rare, difficult to prove and has not been shown to change the outcome of races.
In an email sent to Page on Saturday, the California secretary of state’s office said that California’s voter registration and tabulation processes “are entirely consistent with federal law.”
“Our office’s position, as shared with DOJ, is that agreeing to the DOJ’s demands to segregate the ballots of individuals on the list and not process them, based solely on a list of names unsupported by evidence, would violate both federal and state election law,” the secretary of state’s office said. “California’s election administration is fully compliant with federal election law and will continue to be governed by applicable federal and state law, not by unsubstantiated claims and outrageous demands.
“Put simply, California will not disenfranchise thousands of its voters based solely upon unsupported and likely inaccurate claims about ‘suspected’ non-citizens.”
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There are more than 1.9 million registered voters in Orange County, according to the latest voter registration statistics from the California secretary of state. Ballots were mailed to all registered voters at the beginning of the month, and voting is well underway for the election on Tuesday, Nov. 3.
Earlier this month, the federal government targeted Los Angeles County and the California secretary of state’s office in a lawsuit that aimed to block them from counting the votes of roughly 20,000 people who it said are “likely” noncitizen voters.
A hearing on the case is scheduled for Tuesday, the outcome of which — in addition to a formal response from the Justice Department to the county counsel’s letter — will help determine Orange County’s approach in terms of responding to the DOJ’s request, Page said.
Last week, the Justice Department charged 28 people from across California with illegally voting, registering to vote in federal elections or making false statements in citizenship paperwork. And last month, the Orange County registrar of voters received three subpoenas seeking voter records for 20 people, according to documents provided to The Orange County Register.
“We complied with that court order and provided the information by the deadline,” Page said. “There’s a difference between having a court order and a letter that requests and interprets the law in a new way that has never been done before.”
The Justice Department requested voter records from January 2024 to present, including registration information, addresses, history and methods of voting, and the registrants’ claims about their citizenship status. The information was sought in connection with “an official criminal investigation” conducted by the U.S. Department of Homeland Security, a letter from Assistant U.S. Attorney Michael Wheat said.
Friday’s letter from Essayli asked elections officials to “commit to working with DOJ and DHS to identify who on the accompanying list is a citizen and who is not. That means sending us the nonpublic information associated with each suspected alien’s registration,” including voter applications, a driver’s license or state ID number.
According to the New York Times, some county registrars have already reported errors with the lists of potential noncitizens they received.
The registrar in Inyo County reported that neither of the two people on the list she was sent had been issued ballots or voted anywhere in California, according to records. And the registrar in Mendocino County said the list received there was wrong, the New York Times reported.
Page said he is unaware of any county official accessing what’s on the USB drive the Justice Department delivered on Friday as it’s still being held securely. It’s currently unknown whether the data provided by the DOJ is accurate, he said.
“Our intent is to continue to conduct this election, so that voters can easily and securely cast their ballot, and to follow the law,” he said. “Our understanding of the law is based on past practice, what’s in the statutes, what county counsel has guided us with, the secretary of state’s guidance that’s come out, what prior court decisions have been issued.
“Whether or not the DOJ’s new approach to the law is what we should be doing, we’ll be looking for guidance from the court on that.”
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Politics editor Kaitlyn Schallhorn contributed to this article.