The U.S. Department of Homeland Security is unlawfully scrutinizing naturalized U.S. citizens and placing them at risk of disenfranchisement, civil rights groups alleged in a lawsuit Wednesday, less than a week before Election Day.

The lawsuit, filed in California, came as Homeland Security asked for an emergency order to restart election-related field operations in nine states after a federal judge paused them over concerns they could sweep up U.S. citizens.

The developments add to the growing legal war over the midterm elections being fought in federal courts across the country. President Donald Trump’s administration is waging an aggressive and highly visible effort to target alleged noncitizen voting — a campaign Democrats and voting rights groups fear will wrongly ensnare Americans entitled to cast a ballot.

Homeland Security and its sub-agency, U.S. Citizenship and Immigration Services, or USCIS, “created a rushed, flawed process that brands naturalized and derivative citizens as potential criminals in the federal government’s eyes and then tries to disenfranchise them,” the lawsuit says.

The lawsuit was filed by OCA-Asian Pacific American Advocates and Common Cause, with representation from the American Civil Liberties Union.

The lawsuit accuses Homeland Security of operating what it calls an “Unlawful Voter Initiative” — a policy by USCIS to target thousands of naturalized and derivative citizens for voter eligibility investigations and tracking. The allegations are rooted in a whistleblower report released in September by U.S. Senate Democrats that said DHS is investigating naturalized citizens without their knowledge.

“Naturalized citizens are U.S. citizens, with exactly the same right to vote as anyone born here,” John C. Yang, president and executive director of Asian Americans Advancing Justice, said in a statement.

DHS lists

OCA-Asian Pacific American Advocates and Common Cause are asking a federal judge to block Homeland Security from targeting naturalized citizens and from demanding that any state or local election official not count ballots from voters based on their inclusion in any list of alleged noncitizen voters compiled by DHS. 

The U.S. Department of Justice has sued California in an effort to force election officials to not count the ballots of 20,000 suspected noncitizen voters and demanded Washington state not count the ballots of 400 suspected noncitizens. 

Homeland Security compiled those lists.

Election officials in California and voting rights advocates have voiced deep reservations about the reliability and accuracy of the list. The federal judge in the California lawsuit signaled during a hearing Tuesday that he will likely assign a special master to examine the list, but was leaning against requiring election officials setting aside ballots.

Homeland Security didn’t respond to a request for comment Wednesday.

“The Trump Administration will not allow illegal aliens to steal the votes of hardworking American citizens. American elections are for Americans only,” Homeland Security Secretary Markwayne Mullin said in a news release Wednesday touting a wave of voter fraud arrests.

Enforcement ramping up

For the past several weeks, Homeland Security has ramped up efforts to target alleged noncitizen voters. Dozens of noncitizens have been arrested across the country, with their names and photos publicized in news releases and on social media.

Noncitizen voting is a misdemeanor offense, though individuals can also face deportation.

Last week, U.S. District Judge Araceli Martínez-Olguín, an appointee of President Joe Biden in the Northern District of California, blocked Homeland Security from conducting election-related field operations that could sweep up U.S. citizens. She issued a preliminary injunction after voting rights advocates alleged DHS was sending armed agents to homes to question residents about their voter status. 

The injunction bars operations in California, Connecticut, Georgia, Missouri, Nevada, New York, Pennsylvania, Washington and Wisconsin until polls close. 

On Tuesday, Homeland Security filed an emergency motion asking the 9th U.S. Circuit Court of Appeals to pause the injunction. The Trump administration asked the appeals court to rule by Thursday.

“The preliminary injunction will continue to interfere with ongoing federal law enforcement operations relevant to the security and integrity of the midterm elections,” Gabriel Schonfeld, a U.S. Department of Justice lawyer, wrote in a court filing.

The 9th Circuit appears set to move swiftly, ordering all court papers in the case to be filed by Wednesday.

One in 10 eligible voters 

Roughly 10% of Americans eligible to vote this year are naturalized citizens, according to a Pew Research Center analysis of U.S. Census data. The percentage of eligible voters who are naturalized has risen from about 6.2% in 2000.

California has the largest share, with naturalized citizens comprising nearly 22% of eligible voters. Florida, New Jersey and New York have the next highest percentages, ranging from 17% to 20%.

Some voting rights advocates say they’ve heard from naturalized citizens who fear they could be caught up in the Trump administration’s push against noncitizen voting.

“It is a concern we have heard from our members across the country,” Omar Nourledin, senior vice president of policy and litigation at Common Cause, told reporters on Wednesday. “And it is a well-founded concern given the junk data that the U.S. Department of Justice has used to compile these lists.”

Voting rights groups and Democratic officials are looking to defend against what they see as possible election interference from the Trump administration ahead of the upcoming midterm elections, now that they’ve won a major battle over mail ballots.

Common Cause, a nonpartisan pro-democracy organization, announced a “voter protection” campaign Thursday that would place thousands of volunteers at polling sites in 25 states.

The initiative is designed to counter potential administration moves to intimidate voters, such as ordering troops or law enforcement officers to polling places.

The Democratic Party is also upping its voter protection efforts, launching its own initiative this week to deploy 10,000 volunteers to assist voters at polling locations in all 50 states plus seven U.S. territories.

Both efforts are described as preemptive efforts to head off any possible attempts by President Donald Trump to skew election results. Trump for years has alleged, without evidence, U.S. elections are beset by myriad attempts at fraud.

He has used that pretext in attempts to enact policies to restrict voting, including the order limiting vote-by-mail that the U.S. Supreme Court blocked for this election. 

‘Breathing down our neck’

Voting rights advocates say they are preparing for more efforts to dissuade voters from casting ballots. 

Voters are “facing aggressive and deliberate threats from this administration and anti-voter forces that are tied to this administration,” Common Cause CEO Virginia Kase Solomón said. “Whether it be voter intimidation at the polls, the attacks on mail-in voting or attempts to collect your personal data, the barriers that voters are facing right now … are not only real, they are urgent. And they are intentionally designed to make everyday Americans give up.”

The Democratic plan, led by the Association of State Democratic Conferences, a coalition of the 57 state and territorial party leaders, was also in part a reaction to Trump, ASDC Chair Jane Kleeb said in an interview.

“We had to react to the threat that was breathing down our neck,” Kleeb, who is also the chair of the Nebraska Democratic Party, said in an interview.

Trump has broadly accused Democrats of trying to cheat, and has placed particular focus on the possibility of noncitizens voting.

White House spokeswoman Lauren Bis wrote in a Thursday email that the administration would continue to guard against that possibility.

“Despite extreme Democrats and the media claiming it never happens, the evidence of non-citizens registering and voting in our elections continues to pile up,” Bis wrote. “Any non-citizens found registering and voting in our elections will be arrested and held accountable. Only Americans should be electing American leaders.”

The Justice Department has charged a handful of voter fraud cases of foreign nationals in recent months. 

The administration has also argued a software glitch in New Jersey that registered 6,600 noncitizens showed why tighter regulations on voting are needed.

“There continues to be a narrative and a concern that noncitizens are voting,” Ari Mittleman, the executive director of the civic education group Keep Our Republic, said, adding that examples like the New Jersey glitch kept the issue “on the minds of many.”

Troops at the polls?

Common Cause officials and Kleeb highlighted the possibility of federal troops or law enforcement, including Immigration and Customs Enforcement, at polling places as a strong concern.

“We don’t know exactly what Donald Trump is going to do,” Kleeb, whose interview was conducted before the Supreme Court’s mail voting decision on Sept. 14, said. “But if we take him at his word, he will disrupt the vote-by-mail process, and he will have people outside of polling locations to intimidate voters.”

Administration officials have dismissed the idea of sending federal agents to the polls, but have not completely ruled it out. 

FBI Director Kash Patel repeatedly dodged the question during a U.S. Senate hearing Wednesday.

At a press conference this month, Homeland Security Secretary Markwayne Mullin said ICE would not have a sizable presence at election sites, but could deploy as part of the agency’s routine duties.

“ICE isn’t there to patrol the polling places,” Mullin said. “We’re there to enforce specific threats. The only reason why we would be at polling places: Because there is a threat to that polling place or we are serving a warrant on someone we are actively tracking down.”

And then-White House press secretary Karoline Leavitt called a question about sending ICE agents to the polls “disingenuous” at a February press briefing.

“I can’t guarantee that an ICE agent won’t be around a polling location in November. I mean, that’s frankly a very silly hypothetical question,” she said. “But what I can tell you is I haven’t heard the president discuss any formal plans to put ICE outside of polling locations.”

Disinformation, distrust

Trump’s relentless focus on election regulations has contributed to a distrust of elections. Only 34% of adults in a AP-NORC and USAFacts poll this month said they trust government certifications of election results “a great deal” or “quite a bit.”

Solomon said on the Thursday press call announcing the voter protection drive that the administration and its allies were seeking to sow distrust in the election.

The program, which the group said was the country’s largest nonpartisan election protection effort, hopes to counter that narrative by installing voter advocates at polling stations.

Volunteers will receive about an hour to 90 minutes of training on their state’s voting laws and how to help voters. ASDC volunteers will also receive about an hour of training. 

“They are trained to check for things like signage, polling place accessibility, long lines,” Common Cause Director of Policy Carol Evans said. “They are trained to be a positive and joyful presence at the polls to make the experience better for voters. And importantly, they are our eyes and ears on the ground to alert us to serious issues.”

In another voter education initiative, Keep Our Republic has launched a series of town hall-style events in the five states in which it operates — Georgia, Michigan, North Carolina, Pennsylvania and Wisconsin — to give election officials a platform to speak to voters and increase trust in the election process, Mittleman said.