Federal agents with the Department of Homeland Security delivered a criminal grand jury subpoena to the Orange County Registrar of Voters on Thursday, a day after a federal judge issued an order warning prosecutors to stop threatening California election officials, with the midterm election days away.
The subpoena, served by Department of Homeland Security agents, seeks unredacted voter records for 60 people, according to records obtained by CalMatters. Registrar of Voters Bob Page said three of the names in the new subpoena had appeared in earlier requests; elections officials had produced records on 20 registered voters in September. At least four California election workers have received federal criminal grand jury subpoenas over the past week.
The demands involve prosecutors in the office of Bill Essayli, Los Angeles' top federal prosecutor and a leading aide in President Donald Trump's push to find evidence for longstanding and never-proven claims that California elections are rigged in Democrats' favor due to noncitizen votes. This month Essayli sued California and Los Angeles County, demanding they set aside the ballots of 20,000 registered voters he accused of not being U.S. citizens, and last week the Justice Department sent letters threatening local election officials with criminal charges if they did not do the same with lists of voters in their own counties. County officials across California have said spot checks found the government's list inaccurate and have challenged the legality of the requests. Bloomberg Law reported that Justice Department leaders directed top prosecutors to pursue such subpoenas, citing two unnamed sources.
In Los Angeles County, prosecutors subpoenaed three employees of the Registrar-Recorder's Office to testify before a grand jury on Nov. 4, the day after the election, demanding records on how the department prevents noncitizens from voting and records relating to evidence collected by the agency that tends to indicate an alien has voted in a federal election. Registrar-Recorder Dean Logan called the approach “confrontational, adversarial” and said the judge's warning “was well placed and appreciated.”
U.S. District Judge David O. Carter's written ruling on Wednesday said: "Never before in American history has the federal government, on the eve of an election, sought to coerce a state and local government to abandon their own Constitutional elections procedures and bend to the will of the Executive Branch." The Justice Department has appealed the ruling to the 9th Circuit Court of Appeals.
Justice Department spokesperson Kiersten Pels said receiving a subpoena does not mean being a target, and that prosecutors are doing what Carter told them: prosecute illegal voting if it is found. Carter told Essayli in court that if noncitizen voting were as widespread as claimed, prosecutors should "Go out and indict." Federal prosecutors last week charged 28 people with registering to vote despite not being citizens, about 0.0001% of the state's 23 million registered voters.
Elections law expert Justin Levitt of Loyola Law School said the rush to subpoena officials in the middle of an election is unjustified given the five-year statute of limitations, saying "there is no reason whatsoever for them to demand this information now." California Sen. Tom Umberg, a Democrat and former federal prosecutor, said he was appalled at attempts "to intimidate public officials in exercising their sworn duties." Law professor Michael Vitiello of the University of the Pacific's McGeorge School of Law said the government is signaling that election officials "should lose some money, lose some sleep and maybe even go consult with lawyers."
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Analysis
Why This Matters
Federal prosecutors are using grand jury subpoenas against state and local election workers days before a midterm election, a confrontation with no clear precedent in American history.
The dispute centers on whether local officials must hand over voter records that California counties say are inaccurate, threatening the administration of the vote in the nation's most populous state.
The Justice Department says it is pursuing legitimate criminal investigations into noncitizen voting; officials and experts say the timing and pressure are designed to intimidate election workers.
Background
The Trump administration has long claimed, without proof, that noncitizen voting rigs California elections in Democrats' favor. In recent weeks, federal prosecutors demanded counties investigate lists of registered voters they said were not citizens, threatening criminal charges against officials who refused. Los Angeles U.S. Attorney Bill Essayli also sued the state and Los Angeles County over 20,000 voters he accused of not being citizens. A federal judge on Wednesday ordered the threats to stop, and the Justice Department appealed while continuing to serve subpoenas.
Key Perspectives
Justice Department: Spokesperson Kiersten Pels says receiving a subpoena does not mean an official is a target, and that prosecutors are only doing what the court said: unlawful voting results in criminal exposure, and the remedy is criminal prosecution.
Judge David O. Carter: Wrote that never before has the federal government, on the eve of an election, sought to coerce state and local government to abandon its constitutional election procedures, and reiterated that "these threats must stop."
California election officials: Dean Logan of Los Angeles County called the prosecutors' approach "confrontational, adversarial" and said threats and intimidation have no place in elections; Bob Page of Orange County noted names from earlier requests reappearing in the new subpoena.
Legal experts: Justin Levitt says the information is not needed now because the statute of limitations is five years, and Michael Vitiello says the government is signaling officials should lose sleep and consult lawyers.
What to Watch
The grand jury appearance ordered for Nov. 4, the day after the election, and whether officials comply or challenge the subpoenas.
The Justice Department's appeal of Judge Carter's ruling to the 9th Circuit, and whether the judge takes further action if new subpoenas arrive.
Whether more counties follow San Luis Obispo in investigating the voters named in the Justice Department's demand letters, and whether any of the 28 people charged are convicted before the election.
11 claims in this story checked against 1 source: 9 supported.
Show each claim
Partly supportedFederal agents delivered the Orange County subpoena on Thursday.CalMatters: “Federal officials delivered a subpoena to Orange County Registrar of Voters’s office on Thursday.”
SupportedThe subpoena was delivered a day after the judge warned prosecutors to stop threatening election officials.CalMatters: “On Wednesday, a federal judge issued a blistering order warning federal prosecutors to stop threatening California election officials with crimes. A day later, federal prosecutors kept going.”
SupportedThe Orange County subpoena seeks unredacted voter records for 60 people.CalMatters: “In that subpoena, issued to the Orange County Registrar of Voters’s office, federal agents with the Department of Homeland Security are seeking unredacted voter records for 60 people, according to records obtained by CalMatters.”
Sources say otherwiseThe Justice Department threatened local officials with criminal charges if they set aside voter lists in their counties.CalMatters: “last week the Justice Department sent letters threatening local elections officials with criminal charges if they did not do the same with lists of voters in their own counties.”
SupportedAt least four California election workers received federal criminal grand jury subpoenas over the past week.CalMatters: “At least four elections workers in California have received federal criminal grand jury subpoenas over the past week”
SupportedThree names in the new Orange County subpoena had appeared in earlier requests, and officials produced records on 20 registered voters in September.CalMatters: “Elections officials had in September produced records on 20 registered voters in response to subpoenas. On Thursday, Registrar of Voters Bob Page told CalMatters three of those names appeared again in the new subpoena.”
SupportedBloomberg Law reported that Justice Department leaders directed top prosecutors to pursue subpoenas, citing two unnamed sources.CalMatters: “Bloomberg Law first reported Thursday that U.S. Justice Department leaders had directed top federal prosecutors to pursue criminal subpoenas of state and local officials in their efforts to find evidence that noncitizens were allowed to vote. The news outlet cited two unnamed sources familiar with the situation.”
SupportedDean Logan called the prosecutors’ approach “confrontational, adversarial.”CalMatters: “In a statement, Los Angeles County Registrar-Recorder Dean Logan said prosecutors were taking a “confrontational, adversarial approach.””
SupportedJudge Carter wrote: “Never before in American history has the federal government, on the eve of an election, sought to coerce a state and local government to abandon their own Constitutional elections procedures and bend to the will of the Executive Branch.”CalMatters: ““Never before in American history has the federal government, on the eve of an election, sought to coerce a state and local government to abandon their own Constitutional elections procedures and bend to the will of the Executive Branch,” Carter wrote.”
SupportedFederal prosecutors charged 28 people with registering to vote despite not being citizens, about 0.0001% of the state’s 23 million registered voters.CalMatters: “Last week, federal prosecutors across California charged 28 people with registering to vote despite not being citizens. Not all of those people had voted in past elections; those charged amount to 0.0001% of the state’s 23 million registered voters.”
SupportedLevitt said, “there is no reason whatsoever for them to demand this information now.”CalMatters: ““Because they have no role in affecting the election results, there is no reason whatsoever for them to demand this information now,” Levitt said.”
Correction
An earlier version of this story said the Justice Department threatened local election officials with criminal charges if they set aside ballots. The threats were directed at officials if they did not set aside ballots.