President Donald Trump has threatened California election officials with lengthy prison sentences if they count ballots from voters his administration has identified as possible noncitizens, escalating a dispute that has already reached federal court. The Justice Department has gone beyond asking a court to stop counting certain ballots and has warned election officials about possible criminal liability. Legal experts told Newsweek that actually putting an election official in prison would require prosecutors to prove much more than what the disputed federal list establishes, including that an official knowingly and intentionally helped someone vote illegally.
The letter said officials who “knowingly tabulate” ballots cast by people federal agencies identify as noncitizens could risk becoming “aiders and abettors to a federal crime.” The confrontation centers on more than 20,000 people the federal government says are likely noncitizens who were sent California vote-by-mail ballots. On October 15, the Justice Department sued California, asking a federal court to stop the state from tabulating mail ballots from people on the list until it could determine their citizenship. The department's own public announcement describes them as “likely” noncitizens and says the federal analysis and review remain ongoing.
In theory, an election official could face prosecution for intentionally assisting a federal election crime. But Michael T. van der Veen, a criminal defense attorney who represented Trump during his second impeachment trial, told Newsweek that prosecutors would first have to identify a criminal offense and prove each required element beyond a reasonable doubt. Whether prosecutors can prove the officials facilitated unlawful voting rather than carrying out their election-administration duties is the real question.” Mark Graber, a Regents Professor in the University System of Maryland and constitutional law scholar, agreed that criminal prosecution is theoretically possible under the federal aiding-and-abetting statute, 18 U.S.C. § 2.
The University of Maryland describes Graber as a leading scholar on constitutional law and politics. Graber said prosecutors would have to show that an official counted the vote of someone the official knew was not eligible to vote. The Justice Department's criminal warning invokes two federal statutes: 18 U.S.C. § 611, concerning noncitizen voting in federal elections, and 18 U.S.C. § 2, the federal aiding-and-abetting statute.
Acting Deputy Attorney General Trent McCotter told California officials that knowingly tabulating the ballots at issue could expose them to liability as aiders and abettors. Van der Veen said an aiding-and-abetting prosecution would require the government to prove the underlying crime occurred, that an election official took affirmative action to assist it, and that the official intended to facilitate the crime. That makes the potential criminal theory different from the case already filed against California.
The Justice Department filed a lawsuit to stop the state from counting specified mail ballots until officials determine voters' citizenship status. DOJ says federal officials analyzed voter-registration records and used multiple data-enrichment and verification methods to assess whether the people identified were likely noncitizens. The Justice Department argued separately in its criminal warning that California election officials received “actual notice of noncitizen voting” after receiving the federal list, according to Democracy Docket's report on the October 16 letter.
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