DOJ Charged Noncitizen Voters — Then Defended the Form With No Citizenship Check

SUMMARY: Hans von Spakovsky writes that DOJ’s Civil Division is undercutting the fight to keep noncitizens from voting. Prosecutors charged 16 illegal voters. Civil lawyers then told a court Louisiana cannot add a citizenship check to the federal registration form.

NATIONAL — In a September 22 column for the Washington Examiner, Hans von Spakovsky argued that one part of the Justice Department is undercutting another. “Criminal lawyers at the Department of Justice recently charged 16 aliens in seven states for illegally registering and voting in American elections,” he wrote. “Yet inexplicably at almost the same time, the Civil Division denied that states have the constitutional right to verify citizenship status and eligibility of registered voters in its response to a lawsuit filed by Louisiana.”

The department is prosecuting people for illegal voting while its civil lawyers defend the federal commission that refused to let a state add a citizenship check to the national registration form.

What Louisiana asked for

Louisiana’s 2024 law requires proof of citizenship to register. Election officials are supposed to check state and federal databases first and ask an applicant for documents only if those records cannot confirm citizenship.

The obstacle is the federal mail form created by the National Voter Registration Act. In Arizona v. Inter Tribal Council (2013), the Supreme Court held that states set voter qualifications, including citizenship, and may require extra proof on their own state form. They generally cannot add that requirement to the federal form unless the Election Assistance Commission approves new state-specific instructions.

Louisiana asked the EAC for that approval. The commissioners split 2–2, so the request failed. On April 14, 2026, the state sued the EAC.

What DOJ told the court

When a state sues a federal agency, the Justice Department’s Civil Division ordinarily represents the agency. That is a different office from the Civil Rights Division led by Assistant Attorney General Harmeet Dhillon, which has been demanding voter rolls, warning states about noncitizens remaining on the lists, and treating illegal registration as an enforcement issue. Dhillon’s lawyers investigate and sue. Civil Division lawyers defend federal agencies.

On August 17, 2026, Civil Division lawyers filed an answer under Assistant Attorney General Brett A. Shumate. They denied that Louisiana’s constitutional or statutory rights were violated and asked the court to dismiss the case. Dhillon’s name is not on that paper.

Von Spakovsky read the filing as a policy choice, not a clerical one. “In other words, DOJ took the position that Louisiana should not be able to implement its proof-of-citizenship requirement. Unbelievable.” He aimed the criticism at Civil Division leadership and at Attorney General Todd Blanche for missing the conflict. “I doubt Todd Blanche has any idea that his Civil Division has taken action that sabotages the good work being done by his criminal lawyers and by the Department of Homeland Security. He called the filing “an abysmal mistake” that needs to be corrected as soon as possible.”

Why the EAC could not reverse itself

By August, the EAC no longer had a working board. Republican commissioner Don Palmer resigned on April 30. After the Supreme Court’s June decision in Trump v. Slaughter, the White House on July 9 fired Democratic commissioners Thomas Hicks and Benjamin Hovland and allowed Republican Christy McCormick to resign.

Without commissioners, the EAC has no quorum. Career staff can keep existing programs running, but they cannot vote to approve Louisianas instructions. Unless the Attorney General ordered a new legal position, Civil Division was left defending the last official act of a commission that no longer exists.

What this means in Arizona

Arizona wrote the rulebook this fight is using. Proposition 200 in 2004 required documentary proof of citizenship to register. The Supreme Court’s 2013 decision in Arizona v. Inter Tribal Council left the state with two tracks: the state form can demand proof, and the federal form cannot unless the EAC says so. Arizona asked the EAC for that change after 2004. The commission deadlocked, and the federal-form gap stayed open.

That gap is why Arizona still has “federal-only voters. A person who uses the federal form and does not provide documentary proof of citizenship, and whose citizenship cannot be confirmed in state records, is limited to president, U.S. Senate, and U.S. House. A full ballot for state and local races still requires proof.

The 2022 statutes, including H.B. 2492, were written to tighten that system. On the state form, an application without proof is supposed to be rejected rather than parked as federal-only. On the federal form, the law tried to limit presidential and mail voting unless citizenship could be verified. Federal courts blocked key pieces of that 2022 design. The Supreme Court has agreed to hear the case this term in Republican National Committee v. Mi Familia Vota. Attorney General Kris Mayes filed a brief in partial support of the petitioners that defends proof of citizenship on the state form but does not ask the Court to put the full 2022 scheme into force.

Louisiana is trying to do through the EAC what Arizona was told to do in 2013: put citizenship-verification instructions on the federal form for that state. If a court accepts Louisiana’s argument, Arizona would have a clearer path to close the same loophole. If the Civil Division’s position stands, Arizona remains where it has been for 13 years. It can police the state form. It cannot force a citizenship check onto the federal form that still creates federal-only voters.

What still has to change

Federal law already makes it a crime for a noncitizen to register or vote in a federal election. The remaining problem is the form most people can use to get on the roll.

If that form accepts an attestation and no proof, a state that wants a citizenship check still needs federal permission. Congress could require proof of citizenship through the SAVE Act. A reconstituted EAC could approve a state’s instructions. Arizona’s Supreme Court case could settle how far a state form may go. None of those decisions is final.

Criminal cases and Civil Rights Division roll demands do not rewrite the federal form. Changing the form requires a new EAC vote, a changed DOJ position in the Louisiana case, or an act of Congress. Until one of those happens, the August 17 answer still tells the court that a state is not entitled to that relief, and Arizona’s federal-form gap stays in place.

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