By admin 
Federal immigration investigators should be barred using lists that opponents say are deeply flawed to interview noncitizens about whether they are registered to vote, lawyers for voting rights groups and the cities of San Francisco and Santa Clara told a federal judge in Oakland on Monday.
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The hearing took place against a backdrop of increasing friction between federal and state officials over whether California is allowing noncitizens to vote, an issue that is coming to a head just weeks before a Nov. 3 election crucial to both major political parties.
“The government is sweeping with an extremely broad net,” attorney Geoffrey Curfman told Judge Araceli Martinez-Olguin. “There is a substantial risk that U.S. citizens will become wrapped up and targeted through these investigations.”
The lists and the data behind them are symbolic of the broad divide between the Republican administration of President Donald Trump and Democrats in California and other blue states. The Trump administration says that its enforcement efforts will improve confidence in elections by making sure that only citizens vote. But most elections officials say voter fraud is extremely rare. California’s Democratic leaders insist the efforts are a form of voter intimidation and that the data the government is using is inaccurate.
On Monday, federal authorities charged 28 lawful permanent U.S. residents in the state with either voting illegally or being improperly registered to vote. Last week, the Republican administration of Donald Trump sued California after the state’s Democratic leadership refused to segregate the ballots of some 20,000 individuals the federal government said might not be citizens.
Legitimate investigations or voter intimidation?
In the lawsuit before Martinez-Olguin, the cities, rights groups and a major labor union say the government violated the federal Administrative Procedures Act by developing new policies aimed at investigating alleged voter fraud without going through the process required by law. The administration is also violating the Voting Rights Act by engaging in actions that could scare legitimate voters away from the polls, they say.
Their briefs include screengrabs of social media posts showing armed Homeland Security Investigations agents approaching houses to ask if residents have registered illegally to vote.
But the judge pressed Curfman, the groups’ lawyer, on whether the groups and the two cities had the legal right to sue under laws regarding government policy and voting rights.
She also asked the groups to be more specific about the specific violations of law that they are alleging.
“I want to hear you talk a little bit more about what it is that you are challenging,” she told him. “From the defendants, I’ve gotten a very good argument for why what you’re challenging is somewhat amorphous and hard to pin down.”
Curfman responded that the groups believe the methodology used to develop the lists of possible noncitizen voters, as well as the government’s decision to conduct such operations on a large scale so close to an election, amount to a new policy that should have been governed by the Administrative Procedures Act.
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Moreover, he said, the data was deeply flawed, and would likely impact U.S. citizens who are eligible to vote. In Nevada, the government initially said it had information indicating about 16,000 people had engaged in voting misconduct. The administration later reduced that number to 185. However, all of them turned out to be U.S. citizens, Curfman said.
Attorney Kelsey John Helland, representing the federal government, said the Homeland Security investigations do not meet the definition of a new policy under the law. The groups’ allegations, he said, were vague and more related to concerns about immigration enforcement than voter fraud.
In developing its lists of possible noncitizen voters, federal officials merely shared information across departments and investigated their findings, he said.
Martinez-Olguin also pressed Helland on the administration’s contention that the federal government can’t violate the Voting Rights Act simply by conducting an investigation. She asked him for the legal precedent on which he based his argument.
Helland said he had not been able to find one.
“I don’t know that that proposition has been tested in the courts before,” he replied. “It makes sense to me as a matter of structural logic.”
Who has the right to sue?
In order for the case to go forward, Martinez-Olguin must agree with the groups that they have the right to sue, a legal concept known as having standing. She asked both sides for their reasoning on the question of standing for the two cities, San Francisco and Santa Clara.
Curfman said that the cities were attempting to protect and reassure their residents that voting would be safe, and that the cities were therefore impacted by the government’s investigations and arrests. In declarations filed with the case, the cities said they had been forced to respond by training poll workers about voter intimidation, conducting outreach to the public and other actions.
But Helland said such undertakings, while potentially beneficial, were voluntary on the part of the cities.
“It’s something that they are choosing to do because they may think it will result in a better-administered election or result in people feeling more comfortable, but it’s not necessary,” he said.
Martinez-Olguin took the matter under submission after the hearing and is expected to make a decision in the coming days.
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