The Supreme Court on Monday evening rejected the Justice Department's emergency effort to stop California from counting mail-in ballots from about 20,000 voters the department suggested might not be U.S. citizens. The decision arrived hours after the request was filed and just before Election Day.
The court issued a one-sentence order without explaining its reasoning, and no dissents were noted. Justice Elena Kagan referred the application to the full court, which ruled without requesting a response from California officials. The outcome added to the Trump administration's courtroom setbacks in disputes surrounding the midterm elections, which will determine control of the House and Senate. Pollsters and analysts widely expect substantial Democratic gains.
Solicitor General D. John Sauer argued in Monday morning's application that the federal government had identified more than 20,000 people who appeared to be registered in California and whom it considered likely to lack U.S. citizenship. He said the assessment relied on publicly available information at the time it was received. Sauer also contended that the government was likely to win its appeal and that disputed ballots could not be recovered once mixed with other ballots.
The department filed its lawsuit in federal court in Los Angeles on Oct. 15, seeking to prevent officials from counting the challenged mail ballots until voters' citizenship could be established. It had previously supplied Los Angeles County officials with a thumb drive listing voters it suspected could be noncitizens. Federal law prohibits noncitizens from voting in federal elections.
Judge David Carter rejected the requested restrictions last Wednesday. The department had asked him to require California officials to separate mail ballots associated with alleged noncitizens on a Department of Homeland Security list and withhold them from the count pending citizenship checks. Carter described the dispute as concerning Americans' voting rights and criticized the executive branch's effort to compel state and local officials to depart from their constitutional election procedures.
A three-judge panel of the 9th Circuit U.S. Court of Appeals upheld that outcome in a 2-1 decision Friday. Judges Mark Bennett and Gabriel Sanchez, writing in the majority, warned that granting the government's request posed a significant risk of disenfranchisement. Bennett was appointed by President Donald Trump, while Sanchez was appointed by former President Joe Biden.
In a separate California case, another federal judge on Friday prohibited the department from threatening election workers with criminal prosecution for continuing ballot processing or resisting other demands. At a Monday hearing before Judge Trina Thompson, a department lawyer acknowledged a "high error rate" in lists of purported noncitizens, MS NOW reported. The lawyer nevertheless argued that those errors demonstrated the need to review voter rolls and verify citizenship.
The department also faces a setback in Alaska, where a federal judge on Sunday dismissed its attempt to restrict immediate certification of the Senate election if Republican incumbent Dan Sullivan loses by a margin potentially attributable to confusion involving another candidate with the same name. The department is appealing that decision.
