Photograph by Nathaniel St. Clair

Do not be overly reassured that:

On October 26, a three-judge panel of the federal Ninth Circuit Court of Appeals blocked the Trump Administration from sequestering 20,000 California ballots which the DOJ alleges were issued to noncitizens. The Court acted on jurisdictional grounds, finding that the DOJ jumped the gun in appealing a lack of order by the federal district judge who has the underlying case. But two of the appellate judges, one Trump and one Biden appointee, also expressed doubts about the merits of the DOJ’s demand.

The third judge, Patrick Bumatay, a Trump appointee, dissented from the 2-1 decision, intoning:

After learning of suspected noncitizens receiving mail-in ballots, California cannot commingle those ballots … Turning a blind eye to aliens voting in federal elections necessarily frustrates Congress’s criminalization of noncitizen voting.

According to the majority, however, California learned of no such thing because the DOJ did not produce persuasive evidence to back up its claim. Notably, as the credulous Judge Bumatay acknowledged, Homeland Security Secretary Markwayne Mullin first warned California’s Secretary of State in July that over 190,000 noncitizens might be registered to vote there. But by October, the DHS had trimmed this number to 20,000, showing how squirrelly its supposed data is.

In May 2025, the Trump DOJ® began demanding complete, unredacted voter rolls from nearly every state. They were rebuffed by Democratic and Republican officials alike, of all but 13 states. So the DOJ filed 31 lawsuits. But it has already lost 27 of them.

To circumvent this obstacle, Trump Administration officials have been gathering publicly available voter lists, subjecting them to both automated and human analysis, and assimilating them with various third party data. They have been cagey about their sources and methods.

State election officials caution that the data the feds are relying on is old and flawed. In the California case, for example, Los Angeles County Registrar Dean Logan stated:

The Executive’s own declarations describe a bulk data match that began with a voter roster more than a year old, obtained from an unidentified source, supplemented through an unnamed commercial platform and compared against federal databases.1

Registrar Logan’s office sampled 200 of the feds’ 20,000 alleged noncitizen voters with LA County addresses and found that 38.9% of those who listed a birthplace affirmed they were born in the U.S. Although the DOJ disputed Logan’s assertion, this only underscores the contested nature of the feds’ factual claims.

DHS’s data ‘clean-up’ appears related to the Trump Admin’s dogged pursuit of the Safeguard American Voter Eligibility (SAVE) Act. Both the SAVE Act, and its more extreme sibling, the SAVE America Act, would require voters to show proof of citizenship in order to register to vote or update their registration. The proposal may sound relatively benign, but experts warn it would inexorably invite the federal government into historically state-run elections, cause mass disenfranchisement, and sow chaos.

Even though the SAVE Act stalled in the Senate, at least six states have reached out their own legislative hands to meet it, enacting similar laws, consistent with a judicial trend of allowing states to opt into Trump’s voter suppression carnival. This means states are free to rely on a federal purge roster cutely also called SAVE (for Systematic Alien Verification for Entitlements).

Similarly, in August the Supreme Court left in place an injunction barring the U.S. Postal Service from implementing an Executive Order directing it to park whole lots of mail ballots if even one among them appears on a federal scrub list. At the same time, however, the Court also allowed federal agencies to continue building their lists and systems.

“One thing that I love about numbers, and I love about facts, is they don’t lie,” DHS Secretary Mullin puffed during a Trump press conference in July in which they claimed to have uncovered 250,000 registered noncitizens across California, Pennsylvania, New Jersey, and Nevada, including the 190,000 he initially attributed to California. Except of course Mullin’s and Trump’s numbers do nothing but lie. In Nevada, for instance, DHS claimed to have identified 15,903 noncitizen registrants, but, as in California, it later dropped that number—to 185. Nevada officials subsequently found that all of the 185 likely were citizens.

This trend hasn’t stopped the feds from threatening local election officials with prosecution if they don’t scrub their voter rolls in conformity with the Admin’s ever-receding, mirage-like data.

In September, Congressional Democrats surfaced a whistleblower who reported that DHS is potentially mis-branding tens of thousands of voters as ineligible simply because they are unable to verify eligibility one way or another. In these instances, the whistleblower explained, DHS encourages agents to create a “Tecs” record on the voter, utilizing a cross-agency system for screening people arriving into the U.S. at border crossings.

According to the whistleblower, DHS instructed agents how to circumvent state laws in order to obtain registration data, including posing as voters in search of their own records. When agents express concerns for their own legal jeopardy, they are assured they are “not personally liable for conducting these searches when done as part of their official duties and properly documented.”

The other day, a friend alerted me that a naturalized U.S. citizen and graduate student he knows was stymied trying to renew her federal financial aid when, suddenly, her citizenship status came back unverified. My information is admittedly anecdotal. But ominously, this follows an October 20 press release by the Social Security Administration boasting that it had “updated approximately 25 million records that previously had missing citizenship information,” with another 8.5 million in progress.

One of the few remaining guardrails preventing the U.S. from veering into totalitarianism is that we don’t have national elections, but state elections for national office. Aware of this roadblock, Trump in February brazenly called for nationalizing elections. We are watching this federal incursion into the states’ traditional election domain play out like a gathering zombie invasion.

Read together, Trump & Co’s pre-midterm maneuvers to implement and enforce aspects of the SAVE Act sub rosa foretell their likely scheme to overturn Democratic victories. Already dealt substantial blows by courts, they have at least as good a chance of failing as succeeding. But we must identify the shape of things to come in order to remain vigilant against it.

“The truth is, this has nothing to do with protecting the integrity of our elections,” California Sen. Alex Padilla warned in September. “That’s just a pretext. It’s about the potential of using manufactured evidence to intimidate voters, to disenfranchise eligible Americans and even undermine or challenge this November’s election results, a classic Trump play.”2

Given MAGA Republicans’ strategy of pushing on every door to find which ones open (as a colleague put it), it is at once reassuring and disturbing to see two Ninth Circuit Judges shoot down the DOJ’s preemptive election interference in California—with the third Judge acting as a simple rubber stamp.

On October 28, federal District Judge David Carter denied the DOJ’s request to have the 20,000 disputed ballots set aside on the merits of the DOJ’s case, or more precisely the lack of them, warning:

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.

Meanwhile, on October 26, the Trump Reich launched its newest attack—on Washington State’s election—demanding the segregation of ballots it deems suspect there.

Such are our victories and vulnerabilities in this too-close volleyball match.