The Trump administration took its fight over California’s mail ballots to the Supreme Court on Monday, Nov. 2, one day before the midterm elections. In an emergency application, Solicitor General D. John Sauer asked the justices to order California to set aside about 20,000 ballots that the federal government has flagged as possibly cast by noncitizens, according to SCOTUSblog’s Amy Howe and the filing. Two lower courts had already turned the government down, according to CNBC and CBS News.
The filing asks for a narrow order, in the government’s telling. The application seeks an injunction that would keep the flagged ballots apart from the rest until officials verify the voters’ citizenship, not an order to discard them. “Once California commingles the challenged ballots with lawful ones, there is no way to get the challenged ballots back,” the government wrote. It argued that counting ballots cast by noncitizens would “debase or dilute valid votes,” and that setting the ballots aside “would not cause any undue hardship to California.”
The list itself sits at the center of the dispute. In the filing, the government says it identified “more than 20,000 individuals who appear to be registered to vote in California” who, in its view, “are likely not U.S. citizens.” The government gave the list to state and county officials on Oct. 12 and asked them to sequester those voters’ ballots, according to the 9th Circuit order. The Justice Department sued on Oct. 15 in federal court in Los Angeles, naming California, Secretary of State Shirley Weber and Los Angeles County Registrar Dean Logan, according to CBS News.
California officials say the list contains many citizens. Los Angeles County officials said a review of a subset of 200 registrations 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. A UCLA analysis of the 20,000 names found that more than 4 in 10 did not appear on California’s current voter roll, the Times reported.
Judge David O. Carter, a Clinton appointee, denied the government’s request for a temporary restraining order on Wednesday, Oct. 28, according to CBS News and CNBC. “Constitutional rights and our democracy are at stake. The public interest favors their protection,” Carter wrote, according to CBS News. “Never before in American history has the federal government, on the eve of an election, sought to coerce a state and local government to abandon their own Constitutional elections procedures and bend to the will of the Executive Branch,” he added, CNBC reported.
On Friday, Oct. 30, the 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 and could jeopardize the County’s entire election,” according to the order. “If the United States believes different procedures are necessary for vote-by-mail ballots, we believe it should take that suggestion to Congress, not the courts,” they added. Citing the Supreme Court’s Purcell line of cases, the majority wrote: “Purcell counsels that we should not intervene at this late hour.”
Judge Patrick J. Bumatay, also a Trump appointee, dissented. “The federal government proposes a modest remedy—stopping California from mixing the ballots of citizens and suspected noncitizens. This solution would not cancel any vote,” he wrote, according to the order, adding that the majority “denies this reasonable request.” The administration’s application repeats his phrase, calling its request a “modest remedy.”
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Both sides spoke out on X on Monday. Acting Deputy Attorney General Trent McCotter wrote that California “has refused to work with the federal government to protect against non-citizen voting, which dilutes lawful votes,” and that “we will continue pursuing every available legal avenue to protect the integrity of our elections and ensure federal law is enforced,” according to the Los Angeles Times. Gov. Gavin Newsom’s press office posted: “Trump and his administration have never understood what ‘NO’ means,” adding, “After they sat on this for more than three days, they now ask for ‘emergency’ relief on the eve of the election.”
Outside voices weighed in too. “The Supreme Court should and I believe will reject the administration’s nervy last-minute attempts to meddle in California’s elections,” said Walter Olson of the libertarian Cato Institute, according to the Los Angeles Times. President Trump claimed last week that “there are hundreds of thousands of bad ballots, bad votes, in California. Millions, in my opinion,” the Times reported; none of the sources checked for this story offered evidence for that figure. Federal prosecutors last month charged 28 lawful immigrants in California with registering or voting in past elections while not citizens, according to the Times.
The stakes in ballots run large. More than 6.4 million Californians had already cast ballots as of Sunday, according to Weber’s office as cited by the Los Angeles Times, and the state counts those ballots as they arrive. California mails ballots to roughly 23 million registered voters, according to CBS News. The government says its injury “will continue to mount through Tuesday, November 10,” the state’s deadline for receiving mail ballots, according to the application.
What happens next rests with Kagan. She could act on the request herself or, as SCOTUSblog considers more likely, refer it to the full court, according to SCOTUSblog. She could also ask California for a response, which would take days, according to the Los Angeles Times. No court-set deadline for a response appears in the reports checked for this story, and as of publication no Supreme Court order had appeared in those reports.
The fight comes alongside other Justice Department election cases. On Sunday, a federal judge dismissed a department lawsuit that sought to stop Alaska officials from immediately certifying that state’s U.S. Senate result, according to CNBC. In a separate case in San Francisco, a federal judge barred the Justice Department and the Department of Homeland Security from threatening election workers over disputed ballots, as Seems News reported.