Supreme Court turns away the Trump administration’s bid to make California set aside about 20,000 mail ballots, hours after the filing and a day before Election Day

The Supreme Court on Monday, Nov. 2, refused the Trump administration’s emergency request to make California set aside about 20,000 mail ballots that the federal government flagged as possibly cast by noncitizens, a day before Election Day. “The application for injunction pending appeal presented to Justice Kagan and by her referred to the Court is denied,” reads the Court’s entry for United States v. California, No. 26A624, in its order list. The justices acted “just hours after” the Justice Department filed the request, Reuters’ Andrew Chung reported, and CNBC described the one-sentence order as coming “on the eve of Election Day.”

The order shows how the Court handled the request. Kagan, the justice assigned to emergency matters from the 9th U.S. Circuit Court of Appeals, did not rule alone; she sent the application to the full Court, according to the order and the docket, which lists the filing, the referral and the denial all on Nov. 2. The order gives no explanation, “as is common when it handles emergency matters,” and “no justice publicly dissented from the decision,” Reuters reported. CNBC likewise reported “no noted dissents.” The Court also did not ask California for a response, “a step that, when taken, usually signals serious consideration of an emergency case,” according to Reuters.

Reporters began posting images of the order on X at about 2:49 p.m. PT, according to this desk’s search of X. Some early posts described the order inaccurately. A Fox News Special Report post on X said Kagan “denied the filing without comment, opting not to refer it to the full court”; the order itself says she referred it to the Court, and the Court denied it.

The government had pitched its request as a narrow one. Solicitor General D. John Sauer asked the justices for an injunction that would keep the flagged ballots apart from the rest until officials could verify the voters’ citizenship, not an order to discard them, according to the application. “Once California commingles the challenged ballots with lawful ones, there is no way to get the challenged ballots back,” the government wrote. The administration “said segregating the ballots was a modest request that would eventually allow legal votes to still be counted,” the Associated Press reported, in a story republished by INQUIRER.net USA.

California officials answered after the order. Gov. Gavin Newsom said in a statement posted by his press office at 3:55 p.m. PT: “After repeatedly losing in the lower courts, the highest court in the land firmly slapped down the Trump DOJ’s baseless attack on California’s electoral process — not even entertaining it.” He added: “Tomorrow, Californians can feel secure in knowing the state will carry out a free and fair election — just as we've always done.” Earlier, at 3:31 p.m. PT, Newsom warned on X that anyone who would “interfere with voters or tamper with ballots” would face felony prosecution in California, adding, “He can't pardon you out of California justice.”

Both sides had traded words earlier in the day, before the ruling. California Attorney General Rob Bonta said the appeal “reeks of desperation and is another attempt to undermine our elections and trample on the rule of law,” according to the Associated Press and Reuters. Acting Deputy Attorney General Trent McCotter wrote on X that “we will continue pursuing every available legal avenue to protect the integrity of our elections and ensure federal law is enforced,” according to Reuters and the Los Angeles Times. This desk searched X for posts from the Justice Department, its civil rights division, the White House and the Los Angeles federal prosecutor’s office after the order and found none about it as of about 4 p.m. PT; none of the reports checked for this story carried a department response to the denial.

Two lower courts had turned the government down first. U.S. District Judge David O. Carter in Los Angeles, a Clinton appointee, denied the request on Wednesday, Oct. 28, according to CNBC and CBS News. “If the Executive can discount votes and threaten an ongoing election due to unproven allegations, then our democracy is in danger,” Carter wrote, as quoted by the Associated Press. On Friday, Oct. 30, a 9th Circuit panel split 2 to 1. Judges Mark J. Bennett, a Trump appointee, and Gabriel P. Sanchez, a Biden appointee, wrote that “there is a material risk that granting the United States its requested relief would result in disenfranchisement,” according to the order. Judge Patrick J. Bumatay, also a Trump appointee, dissented, calling the government’s proposal “a modest remedy.”

The list itself remained in dispute on Monday. The Department of Homeland Security compiled it, according to Reuters. Los Angeles County officials said a review of 200 names from the list found that nearly 40% appeared to have U.S. birthplaces and that 71.2% showed no record of ever voting, according to the Los Angeles Times. At a separate hearing on Monday, over whether to lift her own order barring the administration from threatening to prosecute election workers, U.S. District Judge Trina Thompson asked Justice Department attorney Kenneth Kao, “Would you agree there’s a high error rate?” and Kao answered, “That’s a fair statement,” adding, “That’s why we ask for the registrars’ aid in verifying these are all valid voters,” according to the Associated Press; CNBC, citing MS NOW, reported the same admission. Bill Essayli, who runs the department’s Los Angeles office, told reporters he felt highly confident that the people on the list could not lawfully vote. “This isn’t speculation. This isn’t a theory,” Essayli said, according to the AP, which added that he later conceded the list may contain errors.

Another court ruled against the administration the same day. In Washington, Chief U.S. District Judge James Boasberg found that the administration’s last-minute demands of California election officials likely ran afoul of the Constitution, according to the Associated Press. “The Executive Branch has likely violated the Constitution’s Elections Clause, which commits authority over election rules to the states and Congress alone,” Boasberg wrote, the AP reported. This desk has not read that ruling directly.

The denial fits a pattern of recent losses for the administration in election cases. The Supreme Court in September rebuffed its effort to restrict voting by mail nationwide, according to Reuters and the Associated Press, and a federal judge on Sunday dismissed the Justice Department’s lawsuit over the U.S. Senate race in Alaska, according to Reuters and CNBC. “Multiple studies and state audits show that ineligible voting, including by noncitizens, is rare,” Reuters reported. Federal prosecutors last month charged 28 lawful immigrants in California with registering or voting while not citizens, according to the Los Angeles Times.

The ruling touches a large electorate. California mails a ballot to each of its roughly 23 million registered voters, and voting there began in early October, according to the Associated Press. More than 6.4 million Californians had already cast ballots as of Sunday, according to Secretary of State Shirley Weber’s office as cited by the Los Angeles Times. California holds 52 seats in the House of Representatives, more than any other state, and Democrats need a net gain of four seats to win a majority, according to Reuters.

The order settles only the emergency request. It denies an injunction pending appeal, according to its text; it does not decide the government’s appeal of Carter’s ruling, which the 9th Circuit has before it under No. 26-7231, according to the panel’s order. None of the reports checked for this story described a schedule for that appeal. For the filing that preceded Monday’s order, see Seems News’ earlier report; for the separate San Francisco case over threats to election workers, see this report.