Legal experts see no way for feds to prosecute Arizona officials over noncitizen voters

WASHINGTON – The Trump administration’s homeland security chief threatened state and local election officials with jail time last week if they knowingly allow noncitizens to stay on voter rolls.

But U.S. elections aren’t run by the federal government, and election law experts have been scratching their heads about what federal law a poll worker, secretary of state or county elections director could possibly run afoul of.

The threat from Homeland Security Secretary Markwayne Mullin came on the heels of President Donald Trump’s primetime speech Thursday at which he raised alarms about foreign interference in elections.

“If the election officials, once we gave them the information they need to secure their elections, and they chose not to, then those individuals can also be held accountable by fines, by penalties and even, depending on how far it goes, prison time,” Mullin said.

On July 7, the Justice Department sent letters to election administrators in all 50 states threatening criminal charges if they allow noncitizens to cast ballots in upcoming elections – intentionally or by failing to cooperate sufficiently with federal authorities.

The letter to Arizona Secretary of State Adrian Fontes warns that he could face prosecution for “aiding and abetting” noncitizen voting.

Legal experts have no idea what statute that refers to. Neither the Justice Department nor the DHS has provided an explanation.

“It seems very unlikely that these threats would lead to actual arrest, though they might intimidate some officials to cooperate with the federal government,” said Richard Hasen, an election law scholar at the University of California, Los Angeles. “The Constitution gives states, and Congress acting through laws, the ability to set the rules for congressional elections.”

Fontes called it “insulting” for the DOJ to suggest that he or any other Arizona official is failing to maintain voter rolls. Fontes said his office would continue to follow state law, “not directions that come from political rhetoric or intimidation.”

Mullin “can go suck on a salt lick,” Fontes told the Arizona Mirror.

“This is an attempt to intimidate. It’s certainly not a precursor to actual arrests or prosecution,” said David Becker, executive director of the Center for Election Innovation & Research, which calls itself a “fiercely nonpartisan” organization dedicated to reversing a decline in voter participation.

The center provides legal assistance to election officials threatened with criminal prosecution.

“Election officials are not intimidated, and they’re not worried,” Becker said.

Mullin did not respond to requests for clarification on what grounds election officials might be prosecuted on.

“This shouldn’t be a red or blue state issue. Only Americans should elect American leaders,” Mullin said through an aide. “We’ve put these governors on notice. States must work with us to ensure free, fair and honest elections.”

Conservative groups agree that the threats of prosecution have no legal basis.

“DHS cannot touch a voter file. That’s nonsense. They have no power to do that,” said Logan Churchwell, research director at the Public Interest Legal Foundation, a legal advocacy organization that focuses on election integrity, including lawsuits challenging the accuracy of state voter rolls.

The DOJ’s letters, sent by head of the department’s Civil Rights Division, Harmeet Dhillon, warned state officials they could be charged under several federal voting laws.

The letters refer to sections of the National Voter Registration Act, which sets standards for voter registration and voter roll maintenance. The law makes it a crime for election officials to knowingly engage in voter registration fraud or provide false information about voter eligibility.

But that would be an exceedingly shaky basis for a prosecution, Churchwell said, because “the federal courts cannot agree as to what this law says” and “this law has 50 different readings to it depending on which state you’re in and who’s in court fighting over it.”

Becker noted that a prosecution would require proof of “intent” that goes far beyond refusal to follow federal preferences on checking names against certain databases to weed out ineligible voters.

“There are laws that talk about intentional interference with the election process … all of which require intent. None of the election officials have that,” Becker said. “The election officials are doing a better job than the federal government could ever ask them to do.”

The Center for Election Innovation & Research has found that allegations of noncitizen voting “appear to arise from misunderstandings, mischaracterizations or outright fabrications about complex voter data.”

Trump “is threatening election officials with prosecution for refusing to break the law,” Becker said.

The Justice Department has prosecuted election officials for crimes such as ballot fraud, bribery and corruption but nothing akin to what Mullin has threatened.

Trump set up a task force in May to declassify intelligence and law enforcement documents related to election security. Documents released by the White House last week purport to show that there are 250,000 noncitizens registered to vote in four states – California, Pennsylvania, New Jersey and Nevada – plus tens of thousands in other states.

A letter from Mullin to the top election officials in those four states after Trump’s speech gave them two weeks to outline how they would address noncitizen voting.

The Constitution gives Congress authority to impose requirements on how elections are administered but otherwise leaves election administration to states, and experts say it’s unclear what authority, if any, Mullin has to demand compliance.

On Tuesday, New Jersey Gov. Mikie Sherrill, a Democrat, announced the discovery that 6,600 noncitizens were mistakenly added to voter rolls between June 2023 and June 2024 by the Motor Vehicle Commission.

The voters themselves weren’t at fault. All had checked a box indicating they weren’t U.S. citizens when they applied for drivers licenses or state IDs. Of those, no more than 400 cast ballots, Sherrill said, emphasizing that she was “appalled by the reckless failures that allowed this to happen.”

In January, the Justice Department sued Arizona over access to unredacted statewide voter registration data after Fontes’ office refused to provide it voluntarily. A Trump-appointed federal judge, Susan Brnovich, dismissed the case in April.

The judge ruled that Arizona voter lists are “not a document subject to request by the Attorney General” under the Civil Rights Act.

Arizona is one of 30 states that have been sued. Of the 16 courts that have ruled on the issue so far, the Justice Department has lost them all.

Last year, senior DOJ officials began exploring whether they could bring criminal charges against state or election officials.

Trump has made false claims about elections for more than a decade and continues to assert that the 2020 presidential election was rigged, despite countless investigations by federal and state officials.

In Arizona, where many of Trump’s claims centered, the Attorney General’s Office spent more than 10,000 hours investigating allegations of election fraud and voting irregularities. The office concluded the claims were unsupported by evidence and found no fraud that could have changed the outcome.

In December 2020, Republicans in the Arizona Senate subpoenaed the 2020 election ballots in Maricopa County, hiring the firm Cyber Ninjas to conduct an audit that turned up no evidence of widespread irregularities.