Orange County’s election officials cannot comply with the U.S. Department of Justice’s request to check the citizenship status of more than 1,700 people, the county told the federal government Wednesday evening.
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Citing state and federal law, the county denied the federal government’s request, saying it may revisit the matter now that a federal judge has rejected the Justice Department’s attempt to force California election officials to set aside the ballots of 20,000 alleged noncitizen voters.
Leon Page, counsel for Orange County, offered half a dozen reasons why the county was denying the federal government’s request in his letter addressed to First Assistant U.S. Attorney Bill Essayli.
Essayli recently sent letters to multiple California county election officials. In his request to Orange County, sent Friday and earlier this week, he asked for help determining the citizenship status of 1,754 people the Justice Department identified as “likely aliens” within 48 hours.
On Friday, two federal agents hand-delivered a letter and a data storage drive to Orange County Clerk-Recorder Hugh Nguyen. 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,” 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 had “mistakenly sent” the letter and the USB drive — which “may contain confidential, sensitive, or otherwise protected information” — to Nguyen, since it is Registrar of Voters Bob Page’s office that is responsible for conducting elections and maintaining voter registration records.
Federal agents then hand-delivered a letter and a thumb drive to Bob Page on Monday. The letter appeared to be similar to the one sent to Nguyen, but with Monday’s date and addressed to Bob Page.
Leon Page, from the office of county counsel, said in his denial letter that the Justice Department’s demand violates state and federal election laws. And complying with the request would “substantially interfere with the election” and compromise its integrity, he said.
A spokesperson for the Justice Department was not immediately available Wednesday evening.
Last month, the registrar’s office received three subpoenas seeking voter records for 20 people. Leon Page said the registrar’s office cooperated with that request to the extent permitted by law, but the Justice Department’s more recent demand “is vastly more expansive and burdensome” than its previous request.
“The present USDOJ list, by contrast, apparently contains 1,754 names and demands immediate attention and non-processing of ballots from these individuals, even though over 360,000 vote-by-mail (VBM) ballots have already been returned and processed, and ballot adjudication and counting procedures are well underway,” Leon Page said.
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Leon Page said the county elections office is ready to cooperate with the Justice Department’s requests “to the extent legally permissible,” but complying with certain demands — providing confidential voter registration information, such as unredacted Social Security numbers and driver’s license numbers, for example — without a subpoena or court order would violate state election law.
“Under California law, voter registration is based on the applicant’s attestation under penalty of perjury of eligibility, including citizenship. The Registrar is not authorized to independently investigate citizenship status,” Leon Page said.
Such a challenge must be based on “individualized evidence,” and the authority to enforce that challenge rests with the California secretary of state’s office, the California attorney general’s office or the district attorneys’ offices, he said.
Citing the National Voter Registration Act, which imposes a 90-day restriction ahead of any federal election to remove or challenge a voter’s eligibility, Leon Page said the Justice Department’s demand “constitutes a prohibited action during this federally protected period.”
Additionally, the federal government’s request provided “no methodology, evidence, or legally sufficient basis for its claims,” Leon Page said.
“Neither USDOJ nor (the U.S. Department of Homeland Security) has provided the underlying data used to compile the list, the specific methodology employed, or any individualized evidence of non-citizenship for any person on the list,” Leon Page said. “Should USDOJ wish to provide individualized evidence relevant to a specific voter, the County will evaluate such evidence pursuant to applicable law and in coordination with the California Secretary of State.”
Shortly after Orange County sent the denial letter, a federal judge denied the Trump administration’s request for a temporary restraining order that would have forced California election officials to set aside the mail ballots in question.
U.S. District Judge David O. Carter wrote in a court order that eroded trust in our democracy “is irreparable. Once a vote is segregated, lasting harm has occurred. … This Court declines to be a party to such process.”
In an email Wednesday evening, Bob Page, the registrar of voters, said the county had hoped to send its response after Carter’s ruling but opted to send it at 5:17 p.m., before close of business for the day. He said the county would “revisit the matter as appropriate” based on Carter’s ruling in the statewide case.
There are nearly 2 million registered voters in Orange County. Voting has been underway since ballots were mailed to registered voters at the beginning of the month, and Election Day is Tuesday.
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Staff writer Linh Tat contributed to this report.