Why Trump’s big claims of voter fraud have yielded so few prosecutions

By Tierney Sneed, Annette Choi, CNN

(CNN) — Never before has the federal government been more focused on finding evidence of mass noncitizen voting. What it’s found is exponentially more modest.

Under the orders of President Donald Trump, the administration has launched a far-reaching effort to find evidence that foreigners are tainting elections. Top officials have claimed that they believe hundreds of thousands of noncitizens are on voter rolls, and they’ve threatened election officials with prosecution for not doing enough to stamp out the supposed problem. But those figures have narrowed significantly under additional scrutiny, and much smaller still is the number of people the administration has charged criminally for noncitizen voting.

The rhetoric continues claims that Trump has made for at least a decade, alleging that the votes of millions of noncitizens were the sources of Democratic electoral victories. But even with hundreds of government employees now investigating the issue, they’ve come nowhere close to supporting it.

“Not only do we have no evidence that noncitizen voting is happening at scale,” said Wren Orey, the managing director of the Bipartisan Policy Center’s Elections Project, “But when there are cases that appear to be noncitizen voting or registration, when you dig into the numbers, very often, they fall apart.”

Part of the issue, according to election officials and other voting experts, is that the administration is relying on flawed data-matching programs to make its initial claims, in a process that it has shrouded with secrecy. The administration has been quick to rush out the maximalist interpretation of what those matching programs show, without any hedging or acknowledgement that the numbers must be further investigated, and that they’ll shrink, once they are.

Homeland Security Secretary Markwayne Mullin claimed in July that his agency had found 250,000 noncitizens on the voter rolls in just four Democratic-led states. Letters his office sent that week to the states in question — California, Pennsylvania, Nevada and New Jersey — were more hedged about the actual number. The agency, in the months since, followed up with some of the individual states with a much smaller list of “high-confidence” matches, and even those lists appear to inflate the problem, according to analysis the election officials have done.

DHS is still claiming that, after a review of more than 100 million voter records across both Democratic- and Republican-led states, it has found 300,000 “potential” noncitizens. As of mid-September, the agency had opened 1,620 investigations based on the review, and so far, the effort has led to around 160 arrests — a number that covers both criminal arrests and arrests for administrative immigration proceedings.

More than 800 DHS employees are involved in the effort to review and process the data-matching efforts, a government attorney said in court this week.

“The number of arrests of aliens who unlawfully registered and voted continues to increase daily as the Trump Administration enforces the law,” a DHS spokesperson told CNN. “Every illegal registration and every illegal vote will be investigated, and those responsible will be held accountable.”

Handfuls of prosecutions

DHS has not been working alone on Trump’s hunt for voter fraud. The Justice Department brings any prosecutions that arise from the DHS investigations, and US Attorney’s offices across the country have devoted significant resources to the investigations as well.

California has been ground zero of this effort. Last week, the agency held a press conference, led by the number two official at the department and the US Attorneys from the state, to roll out two dozen criminal cases accusing noncitizens illegally voting. The announcement appeared aimed at boosting a civil lawsuit the Justice Department has filed, demanding that California elections officials do more to verify the citizenship status of 20,000 individuals on the voter rolls before counting any ballots from them.

“And to be clear, that’s just the floor. We’re doing rolling review – DHS is — so the number is likely to grow,” acting Deputy Attorney General Trent McCotter said. “Imagine … 20,000 citizens, enough to fill a small stadium. You go and talk to every one of them and say, “Well, congrats on voting. But your vote got canceled out by someone who’s not allowed under federal law to vote.’”

But the picture painted by the prosecutions is far different than the narrative put forward by Trump and his top allies that Democrats are purposely flooding the border with undocumented migrants to help them rig elections. With just 23 California cases alleging noncitizen voting in Trump’s second term — and similar or smaller numbers of cases charged in other states — the DOJ’s enforcement efforts so far suggest the impact of unlawful foreign votes is well, well short of the scale of tipping elections. Furthermore, most of the defendants are legal permanent residents, some of them having lived in the United States for decades.

Many are not charged with noncitizen voting. Instead, they are charged with making false statements during their naturalization process, during which they were asked whether they had voted or had been registered to vote.

The office of California Secretary of State Shirley Weber received some 300 grand jury subpoenas since August, lawyers for the Democrat said in court filings last week.

The top Trump-appointed prosecutor in Los Angeles argued in court that DOJ doesn’t have the ability to charge every noncitizen voter, and that prosecutions primarily serve the role of “deterrence.”

“The standard keeps shifting. First the claim was that noncitizen voting doesn’t happen. Now that federal prosecutors are charging it in districts across the country, the claim is that it doesn’t happen enough to matter,” a DOJ spokesperson to CNN, citing specific elections that were decided by a small number of votes. “Close elections are not rare, and every illegal ballot cancels out the vote of an American citizen.”

In its litigation with DOJ, California officials have noted that post-election procedures exist for scrutinizing close contests for the potential that fraud swayed the results.

Ryan Germany, a former investigator for the Georgia Secretary of State, noted that prosecutions can be difficult to bring because the law typically requires that the defendant was acting intentionally. In some states, noncitizens have ended up on voter rolls because of glitches in state software, particularly at the DMV.

Often, his investigations encountered people who had not fully realized they had been registered -–perhaps because they had encountered a voter registration drive and they filled out the paperwork just because they were trying to move on from the interaction.

Germany said that, nonetheless, it’s a problem when noncitizens are getting registered, whether accidentally or not, and “I do think that some states could do a better job” of addressing it.

But, he said, we “really haven’t seen a lot of, ‘I am a noncitizen, I am going to try to vote.”

Cooperative states

As the administration has railed against Democratic election officials for allegedly not doing enough to prevent noncitizens from registering, it’s touted its work with “cooperative” Republican led states.

That work has largely been done through a data system known as the Systematic Alien Verification for Entitlements or SAVE. The data tool compares registered voters to federal immigration records for evidence of their citizenship status. The system has long been available to election officials to use for auditing voters, but the administration has beefed up the program by expanding the federal records sources it pulls from and by making it possible for states to upload their entire voter lists en masse. (Previously, election officials used SAVE for individualized reviews).

The White House this summer released figures claiming that thousands of noncitizens had been found on voter rolls in states like Georgia, Missouri, North Carolina and Texas. But election officials have cautioned that the SAVE matches must go through additional rounds of verification, and that the numbers tend to get smaller once local officials investigate further.

“What SAVE is telling you, if they can’t confirm the person is a citizen, they’re not necessarily telling you they’re not a citizen,” Germany said. He praised SAVE as a tool but said that vetting its results required “a lot of manpower.”

“The delta between this initial number and the actual of noncitizens registered, in our experience, that’s a pretty big delta,” he told CNN.

Texas was one of the first states to us the expanded version of SAVE and its review last year suggested 2,724 noncitizens could be on the state’s voter rolls. That number shrunk by more than 500 when the administration added passport data to the system, and more still were verified as eligible voters using state records and other means.

Officials in Collin County confirmed citizenship for 73 people of the 109 tagged as potential noncitizens by SAVE by using state records. Bastrop County found that four of the eight people on its initial list were citizens, according to information provided to CNN by the Texas Association of County Election Officials, while two of the six people on the SAVE list Hays County received proved their eligibility with documents showing their citizenship.

By last month, the state elections office had made criminal referrals for a very small portion of the original list — sending just 117 cases to state prosecutors for potential noncitizen voting. The Texas Attorney General’s office did not respond to CNN’s inquiry about the referrals. But the DOJ, under Trump’s second term, has brought just nine cases in Texas alleging noncitizens had voted.

A similar dynamic played out in Maricopa County, Arizona — the second largest voting jurisdiction in the country and a target of Trump’s 2020 election fraud conspiracy theories. Arizona has a proof of citizenship requirement for voter registration, making SAVE a very common tool used by election officials to verify voters’ eligibility.

County Recorder Justin Heap, a Trump ally who oversees voter registration in Maricopa, announced earlier this year a review he did of 60,000 people caught up in a DMV software glitch that raised questions about their eligibility.

Of that batch, 137 were identified by SAVE as potentially being noncitizens, and Heap said that 60 individuals had records showing they had voted in recent elections. He announced the review in a social media post titled, with a siren emoji, “NONCITIZENS VOTING IN ARIZONA.” His language suggested that the results of the matching program were the final confirmed number.

He then sent that information to Maricopa’s top prosector to review. County Attorney Rachel Mitchell said that she ultimately confirmed that 52 of the 60 voters were actually citizens, shrinking the number of alleged noncitizen voters to just eight.

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