The U.S. Department of Justice is intensifying its campaign against voter fraud with a spree of arrests in the final weeks before Election Day, an effort that voting rights advocates warn risks instilling fear among voters.

Over the past week, the Justice Department unveiled election-related criminal charges against 28 noncitizens in California and threatened state and local election officials with prosecutions. 

It’s now asking a federal judge to immediately order California election officials to not count the ballots of voters it suspects are noncitizens until their citizenship can be verified — citing the new wave of arrests as justification.

Federal prosecutors’ focus on alleged voter fraud comes as President Donald Trump stares down an increasingly dire political landscape in the midterm elections. 

As his approval ratings sag, Democrats are favored to retake the U.S. House and possibly the Senate, an outcome that would trigger a wave of congressional investigations into the president and his administration.

Feds and states

The Trump administration’s confrontation with California is quickly developing into a last-minute showdown over the limits of the federal authority in elections. 

The Justice Department failed to force states to turn over sensitive voter data and the U.S. Supreme Court blocked Trump’s plan to restrict voting by mail. The pressure on California marks a new front in the federal government’s push to assert influence over how elections are run, a responsibility assigned to the states by the U.S. Constitution.

“The Trump administration’s decision to launch a highly publicized federal sweep just two weeks before Election Day is the latest escalation in a coordinated campaign meant to sow fear and confusion amongst voters,” Jonathan Paik, executive director of OC Action, an Orange County, California, civics group, told reporters on Tuesday.

On Monday, the Justice Department announced the arrests of 11 noncitizens and criminal charges against 28 noncitizens in total in California. The DOJ said all 28 individuals are lawful permanent residents. 

The Los Angeles Times reported that some expressed confusion over the charges as they made their initial appearances in federal court in Los Angeles, saying they had no recollection of registering to vote.

The same day, the DOJ filed court papers asking a federal court to issue a temporary restraining order requiring California to not count ballots cast by roughly 20,000 registered voters that the department says are likely noncitizens unless they can confirm their citizenship. 

The request comes after the DOJ first sued California last week, after giving state and local officials 48 hours to investigate the names.

In the court documents, the DOJ says that without court action, a significant risk exists that American votes will be diluted. It notes that all 28 individuals charged were on the list of suspected noncitizen voters given to state officials.

“California is mailing ballots to noncitizens, and they are refusing to comply with federal law, which makes it a crime for noncitizens to vote. The voting rights of American citizens must be protected,” Bill Essayli, the first assistant U.S. attorney in California, said in a statement.

Election officials warned

The Justice Department recently raised the prospect that election officials who stand in its way could face prosecution. In a Friday letter to Los Angeles County, Acting Deputy Attorney General Trent McCotter wrote that if people knowingly tabulate ballots cast by individuals “identified by federal agencies as noncitizens, they risk becoming aiders and abettors to a federal crime.”

While the DOJ’s actions appear concentrated in California, Aaron Reitz, the U.S. Attorney in the Southern District of Texas, said in a Monday statement that local election administrators have a duty to prevent illegal voting “and I’m here to make sure they do their job.”

David Becker, executive director of the nonpartisan Center for Election Innovation & Research, predicted the Justice Department’s California lawsuit would fail. 

Becker, a former senior trial attorney in the Justice Department’s Voting Section during the Clinton and George W. Bush administrations, said election officials are not committing crimes but he anticipates that the Trump administration may raise the “noise level” as Election Day approaches.

“I think there is just a lot of garbage being thrown at the wall because they don’t have any other tools left and they appear to have given up on persuading the electorate in this election,” Becker said on a press call Tuesday.

California election officials have begun to fight back in federal court. Lawyers for California Secretary of State Shirley Weber, a Democrat in court filings on Tuesday urged the court not to let the Justice Department effort proceed.

Weber’s lawyers argue that no barrier exists to the Justice Department enforcing federal prohibitions against noncitizen voting. They note that since August, the California Secretary of State’s office has received federal grand jury subpoenas for about 300 people. Monday’s arrests, they say, actually underscore that federal prosecutors can already work through existing rules and procedures to combat alleged fraud.

“At best, this litigation is a reckless political stunt. At worst, it threatens to disenfranchise thousands of Californians this election,” lawyers for Weber wrote.

In a declaration filed in court, Aman Bhullar, a high-ranking official in the Los Angeles County Assistant Registrar-Recorder/County Clerk’s Information Technology Bureau, warned that the Justice Department’s request raised the possibility of a “catastrophic impact” to voting within the county, the most populous in the nation. 

The consequences, Bhullar wrote, range from halting all vote counting to halting the ability of voters to cast a ballot in person. 

Additionally, Bhullar wrote that his team had analyzed a sample of 200 of the 20,000 names provided by the DOJ. They found that nearly 43% had canceled voter registration records and that 86 of the 200 had been mailed a ballot — and that every voter not mailed a ballot had a canceled or inactive record. 

Of the 200 names analyzed, about 71% had never voted.

Dramatic voter fraud arrests

The Justice Department has said that the Department of Homeland Security identified the names after analyzing the state’s publicly available voter roll data and checked them against immigration records and other sources of federal information. Justice Department lawyers say Homeland Security didn’t use the SAVE system, a computer tool that can verify citizenship that Democrats and other critics say falsely flags U.S. citizens. 

DOJ lawyers are separately fighting with the watchdog groups Common Cause and Citizens for Responsibility and Ethics in Washington over whether the actions in California violate a federal judge’s order in Washington, D.C., blocking the department’s efforts to obtain state voter roll data and feed it to Homeland Security.

Amid dueling court filings on Tuesday, the Justice Department posted to social media a video montage of voter fraud arrests in California set to rock music. Several clips show Homeland Security Investigations agents in tactical gear leading away a handcuffed man who appears to be wearing red pajama bottoms.

Kevin Lainez, the mayor of Commerce, California, where one person was arrested in the Justice Department’s anti-voter fraud operation, told reporters on Tuesday that the charged individuals must go through the appropriate legal process.

“But let me be clear,” Lainez said. “The timing of the operation and the way it was run was nothing short of political theater.”

After the U.S. Department of Justice sued California over its refusal to remove voters the federal government alleges are noncitizens, voting rights advocates fear the Trump administration is violating a court order blocking it from rooting out noncitizens with states’ voter data.

U.S. District Judge Sparkle Sooknanan on Oct. 9 ruled against the Justice Department’s year-long project to obtain state’s unredacted voter rolls, which include sensitive personal data, and share them with the Department of Homeland Security to identify possible noncitizens. The DOJ on Friday said it plans to appeal the decision.

In letters sent on Oct. 13, the Justice Department gave California officials 48 hours to review and remove a list of some 20,000 registered voters that the Trump administration believes are noncitizens. 

Many are concentrated in the Los Angeles area, and state and local elections officials both refused to act on the list. The DOJ immediately sued after its deadline passed on Thursday.

The Justice Department’s lawsuit, coming less than three weeks before Election Day and with voting underway in California, amounts to the latest development in President Donald Trump’s efforts to assert authority over elections, which under the U.S. Constitution are administered by the states. Trump faces a deluge of investigations and pushback if Democrats retake one or both chambers of Congress in November.

Democrats and voting rights groups have previously raised alarms about the possibility of the Trump administration attempting to interfere with voting. For some, the legal action against California only exacerbates their concerns. 

Letter sent, hearing requested

On Thursday, several Democratic senators wrote to U.S. Attorney General Todd Blanche to demand that the DOJ confirm it won’t seize ballots or other election materials.

The watchdog groups Common Cause and Citizens for Responsibility and Ethics in Washington, or CREW, which represents voters who sued to block the DOJ’s voter data sharing, have asked Sooknanan to hold a hearing to look into whether the Trump administration’s actions violate her order. They said the DOJ has adopted an “exceedingly narrow view” of her decision.

“By attempting to superintend voter roll list maintenance and prohibit registered voters from exercising the franchise without adequate consideration of the reliability of the underlying data, DOJ’s October 13 letters and the actions described in the California (lawsuit) appear to implicate — and perhaps outright violate” Sooknanan’s order, lawyers for the groups wrote in a court filing.

On Friday, Sooknanan ordered the Justice Department to respond to the request for a hearing in District of Columbia federal court by Monday.

Email exchange

Common Cause and CREW filed in court a late Thursday email exchange with Christian Dibblee, a Justice Department trial attorney, in which Dibblee writes that Homeland Security obtained a publicly available voter roll of California voters — as opposed to the full, unredacted roll that DOJ has sued states over — and that DHS didn’t use the SAVE system to identify possible noncitizens. 

SAVE, a computer system operated by DHS, combs through government databases to verify citizenship, but critics point to examples of the program falsely flagging U.S. citizens. The U.S. Supreme Court in September ruled that states could continue accessing SAVE ahead of the midterm elections, but most states are currently prohibited from conducting mass purges of voters because it’s too close to the election.

Sooknanan’s order “does not extend to using other methods, nor does it prohibit taking enforcement actions based on those other methods,” Dibblee wrote, adding that Homeland Security also wasn’t a party to the lawsuit challenging the DOJ’s voter roll effort.

The Justice Department’s lawsuit against California offers a broad overview, but few specifics, of how Homeland Security compiled its list of suspected noncitizens. It says that Immigration and Customs Enforcement, or ICE, compares “information about voter rolls” with “its internal data” to identify possible noncitizens. Additional investigative steps, not described, are used to assign a confidence level — low, medium or high — to each match.

ICE then connects high confidence matches with an “alien number” and those individuals are compared against internal records regarding naturalization and parental citizenship. Records from the State Department and Social Security Administration are also reviewed, the DOJ says in its lawsuit.

Individuals that ICE still believes to be noncitizens are then sent to Homeland Security Investigations, a sub-agency of ICE, according to the Justice Department. HSI conducts an “analytical data enrichment process” before sending data to HSI criminal investigators in the field.

In a statement Friday, DHS said it uses multiple data sources, from both government and commercial third-party sources, to supplement public information.

Mullin slams ‘unlawful voting’ 

In a Thursday statement, Homeland Security Secretary Markwayne Mullin called the number of alleged noncitizens registered to vote in California “completely unacceptable.” He said even one noncitizen vote cancels out the ballot of a U.S. citizen and undermines elections.

“DHS is committed to identifying unlawful voting, protecting the integrity of federal elections, and ensuring that only eligible American citizens elect America’s leaders,” Mullin said.

Democrats and voting rights experts have questioned the Justice Department’s decision to file the lawsuit with the election underway. The DOJ previously lost a lawsuit seeking to force California to turn over its unredacted voter roll — one of 23 similar lawsuits over state voter data that the Trump administration has lost.

The Trump administration’s efforts to identify large numbers of noncitizen voters have, up to this point, also fallen short of its own standards. Over the summer, the federal government claimed that California had upwards of 190,000 noncitizens on its voter roll. 

By contrast, Thursday’s lawsuit alleges only roughly 20,000 noncitizen voters — about 0.08% of the nearly 23.2 million registered voters in California.

DHS said Friday that 190,000 remains the number of potential noncitizen voters but that 20,000 represents a subset who have gone through a manual verification process so far.

“Every count, recount, hand count, lawsuit, and audit has found that there’s no widespread voter fraud in the U.S.,” California Attorney General Rob Bonta, a Democrat, wrote on social media. “The Trump Admin’s last-minute demands are meritless, and we look forward to making our case in court.”

The Trump administration sought a federal court order Thursday to force California to purge 20,000 people from its voter rolls over claims they are not U.S. citizens, a major development less than three weeks before the midterm elections.

The U.S. Department of Justice sued the state, asking a judge to validate its claims that the state is willfully allowing noncitizens to vote in the Nov. 3 elections. California law requires that ballots have already been sent to registered voters.

California Secretary of State Shirley Weber and Los Angeles County Registrar-Recorder/County Clerk Dean C. Logan on Wednesday declined to open a thumb drive the federal government sent them containing a list of suspected noncitizens registered to vote in California. 

Logan said the drive was unvetted and opening it would violate the office’s security protocols. 

The Justice Department’s complaint said the refusal to open the drive was a major obstacle to enforcing federal voting laws.

“By sending ballots to likely noncitizens despite the Federal Government notifying California of serious concerns, Defendants (collectively, California) have made it nearly impossible for the United States to investigate and enforce federal law,” the suit said. “This is a substantial drain on federal resources. In addition, when aliens illegally vote in elections, they dilute the votes of citizens and unduly influence who runs the Federal Government. That also undermines public faith in federal elections.”

The suit seeks a judicial order blocking the state from counting mail ballots sent to registered voters that the administration says are noncitizens.

California sends ballots to every registered voter in every election without distinguishing among state, local or federal elections, the suit says. Ballots for this year’s general election went out Oct. 1. 

Only citizens can vote in state and federal elections. San Francisco allows noncitizens to vote in some local elections. 

In Thursday’s complaint, the administration said the Department of Homeland Security had identified 20,000 noncitizens who were registered to vote in California. The department warned California “months ago” that noncitizens may be registered to vote in the state, which “made no serious attempt to” determine if that was true, according to the suit.

Many of the people the administration says are noncitizens and registered to vote live in Los Angeles County, the suit says.

Representatives for Logan and Weber did not immediately return messages seeking comment Thursday.

Motivation questioned

The suit omits efforts by the state over the past few months to work with the federal government to identify noncitizens on its voter rolls, David Becker, the executive director of the nonpartisan Center for Election Innovation & Research, said on a press call Thursday afternoon.

The administration estimated several months ago that 190,000 noncitizens were registered to vote in the state. State officials asked for the federal government’s methodology and for the names of the individuals. They did not receive a response, Becker said.

Instead, the DOJ blindsided California and Los Angeles County with a letter demanding voter files be removed just weeks from Election Day, Becker said. 

Becker suggested that the administration’s objective was not to deny noncitizens from voting, but to sow doubt about the election results. If the DOJ had a “legitimate concern” and was operating in good faith, it would have worked diligently starting at the beginning of last year, he said.

“I don’t know what their motivation is, but I can tell you what their motivation isn’t, because if they were seeking to work in good faith to clean up the voter list that they believed had issues, they would have done this months ago in a much different fashion,” he said. 

“It does raise questions as to whether or not the sole purpose of this is to set the stage for false claims about election theft after an election that the president might be worried his party was going to do poorly in.”

He added that the thumb drive was sent in an envelope that included a handwritten note with a password written on it, which is a serious red flag for cybersecurity experts.

“I don’t know how much you’re aware of the cybersecurity protocols in election offices,” he said. “Election offices do not just stick thumb drives into their technology — for very good reason.”

The U.S. Department of Justice is demanding California not count ballots from voters it says are suspected noncitizens, a move by the Trump administration to apply last-minute pressure as voting begins in the midterm elections.

The Justice Department on Tuesday gave California election officials 48 hours to remove voters on a list contained on a thumb drive provided to Los Angeles County, the most populous county in the country. The DOJ also wants election officials to withhold mail ballots from these voters. 

The demand appeared in letters to the California Secretary of State’s Office and the Los Angeles Registrar-Recorder/County Clerk. The DOJ gave the state until noon Eastern on Thursday to comply, threatening legal action if that deadline is not met.

The letters set the stage for a courtroom confrontation between the Trump administration and the largest state in the country ahead of Election Day. The Justice Department’s demand marks an extraordinary effort to dictate to state officials who will be allowed to cast a ballot even as voting is underway.

“The United States hopes that you share our commitment to ensure that only American citizens participate in our federal elections. Allowing noncitizens to vote cancels citizen votes,” R. Trent McCotter, an acting deputy U.S. attorney general, wrote in a letter to California Democratic Secretary of State Shirley Weber.

Los Angeles County Registrar-Recorder/County Clerk Dean C. Logan said in a statement that his office received the thumb drive, along with a handwritten note containing a password. Workers in the office did not seek to open the thumb drive, which would have violated data security protocols, he said.

He said he would work with Weber and the state attorney general to determine next steps.

“Maintaining accurate voter registration records is a fundamental responsibility of our office,” he added. “Federal and state laws are clear on how voter eligibility is established – and any action to remove a voter from eligibility must be based on verifiable information, not assertions of unconfirmed data matching.”

In a statement late Wednesday, Weber said the DOJ’s actions “only serve to cause chaos and fuel public distrust in our elections.”

Democratic Gov. Gavin Newsom’s press account on social media called the Trump administration’s actions “completely unacceptable and inappropriate.” 

Questions linger

It’s not clear whether the Justice Department plans to send letters to additional states. The Justice Department provided copies of the letters to States Newsroom on Wednesday but didn’t answer a question about whether other states would receive them.

In the letters, McCotter asked California election officials to segregate the mail ballots of the suspected noncitizens until their citizenship status is determined. The individuals shouldn’t be sent mail ballots if they haven’t already been sent one, McCotter added, and any returned ballots should not be tabulated until citizenship can be determined.

McCotter did not say how many individuals are on the DOJ’s list or how the federal government came to believe they aren’t citizens. He wrote that the Justice Department would “seek emergency relief” if California didn’t comply. 

Voter roll changes prohibited during election season

Federal law prohibits most states from conducting systematic purges of voters less than 90 days before an election. If the Justice Department sues to force California to remove the suspected noncitizen voters, a judge would likely grapple with whether the DOJ-provided list represents the kind of mass removal that’s not currently allowed.

Voting rights groups and Democratic election officials, as well as some Republicans, have warned that Trump may try to interfere in the midterm elections. If Democrats retake control of the U.S. House or Senate, the final two years of the president’s term could be mired in investigations and legislative gridlock.

Federal courts have uniformly blocked the department’s efforts to force states to turn over their voter rolls, including sensitive personal information such as driver’s license and Social Security numbers. And a federal judge last week ruled against the DOJ’s use of voter data even from states that voluntarily provided the information.

The U.S. Supreme Court also blocked Trump’s attempt to restrict voting by mail through the U.S. Postal Service, leaving the president with few remaining avenues to assert authority over elections, which are administered by the states under the U.S. Constitution.

“Donald Trump’s attempt to invalidate votes in California is an attack on every voter across the country. The president is abusing his position in a callous attempt to take away the power of everyday people, but here in California we’re not going to let him,” Jonathan Paik, a leader with Can’t Stop California, a nonpartisan voter mobilization group, said in a statement.

Trump has long complained about California elections, especially the speed of ballot counting in the state. California’s long count is a well-known feature of its elections, with election officials given about a month to process and tally all ballots and doesn’t indicate fraud.

The Justice Department has followed Trump’s lead in scrutinizing California’s elections. The top federal prosecutor in Los Angeles has linked suspicions about California’s elections to the state’s refusal to turn over its unredacted voter roll.

Three weeks before Election Day, the Trump administration’s sprawling project to send sensitive personal information on millions of voters to the Department of Homeland Security has been declared illegal by a federal judge.

The blistering court decision comes after the Department of Justice pressured or sued states for their voters’ information and then, according to court records and federal documents, turned over the data it obtained to Homeland Security Investigations — a sub-agency of Immigration and Customs Enforcement, or ICE.

The decision, issued late last week, marks the latest rebuke of the Trump administration during more than a year of legal confrontations with dozens of states and voting rights groups over President Donald Trump’s efforts to assert authority over voting ahead of the midterm elections. 

If Republicans lose control of one or both chambers of Congress, Trump’s final two years in office could be consumed by Democratic-led investigations into his administration and opposition to his legislative agenda.

The Justice Department’s legal arguments suggested that “every American citizen who registers to vote is the subject of a voter fraud investigation underway in the (Justice Department’s) Civil Rights Division simply because they registered to vote,” wrote Judge Sparkle Sooknanan of District of Columbia District Court, an appointee of President Joe Biden.

“Behind all the window dressing, the challenged policy represents the federal government’s attempt to decide who gets to vote,” Sooknanan wrote. “But Congress has left that authority where our Constitution has always placed it: with the states.”

SAVE program

The Justice Department has already lost at least 23 district court lawsuits seeking to force states to provide voter data. The U.S. Supreme Court also blocked Trump’s plans to use the U.S. Postal Service to restrict voting by mail. 

While the Supreme Court cleared states to use a supercharged Homeland Security computer program called SAVE to seek out noncitizen voters, its effects on the midterms have been minimal because most states are restricted by federal law from conducting mass purges of registered voters so close to an election.

SAVE’s opponents point to multiple examples of the program falsely flagging Americans as possible noncitizens. Sooknanan previously ruled against SAVE’s use in a June decision, which the Supreme Court overturned in September when it allowed states to access the program.

Asked about Sooknanan’s latest decision, Justice Department spokesperson Kiersten Pels in an email to States Newsroom said only that the department was “reviewing the ruling.”

More noncitizen voting charges

In recent weeks, the Justice Department has filed a series of cases alleging noncitizen voting, which studies have consistently shown rarely occurs. The DOJ on Monday announced voter fraud charges against 16 individuals, including 13 noncitizens. In September, prosecutors secured grand jury indictments against 10 noncitizens in Minnesota.

“The law is clear, only American citizens may vote in American elections, and enforcing this law is fundamental to our democracy. That should not be a partisan concept,” U.S. Attorney General Todd Blanche said at a late September news conference.

Sooknanan’s ruling came in a lawsuit filed in April by the voting rights group Common Cause and a group of voters. While both Republican and Democratic-led states had fought the Justice Department individually, the new lawsuit targeted the entire voter roll collection project — a choice aimed at protecting voters living in states that had shared or might share their data with the Trump administration voluntarily.

“This is a victory for voters and yet another loss for the Department of Justice. It’s time the Trump administration stop these desperate attempts to seize voters’ private data and take control of our elections,” Virginia Kase Solomón, Common Cause president and CEO, said in a statement.

16 states provided voter rolls

Despite the courtroom losses, the Trump administration still obtained records on tens of millions of voters. At least 16 states voluntarily provided the Justice Department with their voter rolls, according to the Brennan Center for Justice at New York University, which has tracked the DOJ’s actions.

Those states include Alabama, Alaska, Arkansas, Florida, Indiana, Iowa, Louisiana, Mississippi, Nebraska, Ohio, Oklahoma, South Carolina, South Dakota, Tennessee, Texas and Wyoming.

Court filings and internal government documents show the Trump administration put the information to use. Last week, the watchdog group Democracy Forward released internal HSI reports showing the agency received nearly 51 million Justice Department records as part of its “election integrity” investigations.

The HSI reports didn’t describe the nature of the Justice Department records. But Sooknanan wrote the DOJ had given records on millions of voters to ICE. Sooknanan ruled the transfers violated the Privacy Act, a federal law that restricts how federal agencies collect and share information on individuals.

Sooknanan referenced a letter from the acting director of ICE to the Justice Department asking for the state voter lists as part of an initiative to combat voter fraud. In the March 6 letter, Todd Lyons asked for the data “in order for HSI to conduct appropriate investigation of potential violations of federal election law.”

DOJ attorney Eric Neff replied to Lyons on March 12 to confirm the data sharing. He wrote that Homeland Security and the Justice Department would “take reasonable efforts to limit impacts to the privacy and civil liberties of United States citizens.”

However, Sooknanan found that the DOJ sought to investigate every registered voter without a specific reason to believe they committed voter fraud or that their states violated federal election laws. She warned that the department cannot evade the free speech protections within the Privacy Act by launching a “dragnet” investigation of the whole country.

‘Not only ill-conceived, but illegal’

Justin Levitt, who served as senior policy adviser for democracy and voting rights in the Biden White House and is now a law professor at Loyola Marymount University, said not much in Sooknanan’s decision will directly affect the 2026 elections. 

Writing in Election Law Blog, Levitt noted that most states never turned over their voter files to the Justice Department, and of the states that did, only a few appeared to have pledged to act on whatever “unreliable garbage” data the DOJ sent back.

“But even without a direct impact on anything happening in the next month, this is an important declaration that the whole program was not only ill-conceived, but illegal,” Levitt wrote.

The Trump administration may still be allowed to compile lists of voting-age citizens in each state as part of a sweeping executive order on voting by mail signed by Trump in March. But court-mandated notice requirements mean the lists won’t be available before the midterms.

The so-called state citizenship lists are the only major element of the executive order not currently blocked by the courts. The order directs Homeland Security to work with the Social Security Administration to develop the lists and provide them to state officials, though it doesn’t require states to do anything with the information.

Maryland judge to consider citizenship lists

U.S. District Court Judge Paula Xinis, an appointee of President Barack Obama in Maryland District Court, is set to decide what the Supreme Court’s Sept. 25 decision allowing the use of SAVE means for the fate of the citizenship lists. 

The Electronic Privacy Information Center, or EPIC, a public interest research organization, sued the Trump administration over the lists in August. While Xinis hasn’t ruled in the lawsuit, she has ordered the DOJ to provide at least 30 days notice of any effort to move forward with the initiative or provide the lists to states.

With less than a month before Election Day, the notice requirement effectively means the lists won’t be available before the midterm elections, even if they are upheld in court. Still, the eventual outcome holds potential consequences for future elections if states use the information to purge registered voters.

EPIC and the Justice Department have submitted dueling briefs to Xinis on what the SAVE decision means for the citizenship lists.

Lawyers for EPIC argue that key differences exist between the state citizenship lists and the SAVE system. While the SAVE system discloses information on requested individuals, they noted, the executive order mandates providing information on all U.S. citizens by state.

“Critically, states or localities must initiate a request for verification of specified individuals’ citizenship status in order to utilize” SAVE, the attorneys wrote.

Lawyers for the Justice Department called the argument a “red herring.” In their brief, they argue that state officials would have to log into a federal portal to download the citizenship data.

“That affirmative conduct would be materially similar to sending a request to DHS: either way, the State would itself initiate the transfer of data,” the DOJ brief says.

Xinis could rule at any time.