Trump administration asks Supreme Court to set aside California mail ballots from 20,000 voters it alleges may be noncitizens, a day before the midterms
The Justice Department filed an emergency request on Monday asking the US Supreme Court to order California to segregate mail ballots cast by more than 20,000 registered voters federal officials allege may not be citizens, after two lower courts refused the same request.
The Trump administration asked the United States Supreme Court on Monday to intervene in a last-minute fight over California mail ballots, seeking an order that would require the state to set aside ballots cast by more than 20,000 registered voters whom federal officials allege may not be US citizens. The emergency request was filed just one day before the midterm elections on Tuesday, 3 November, which will decide which party controls Congress.
The Justice Department wants California to separate any mail ballots associated with people on a federal list of about 20,000 names and to verify their citizenship before those ballots are counted. In its filing, Solicitor General D. John Sauer warned that once California mixes the challenged ballots with lawful ones, there would be no way to retrieve them. The administration argues it is enforcing a 1996 federal law that makes it a criminal offence for noncitizens to vote in federal elections.
The list at the centre of the dispute was assembled by the Department of Homeland Security and sent to California and Los Angeles County officials. The Justice Department sued California on 15 October, claiming the state was unlawfully preventing enforcement of the federal ban on noncitizen voting. California has pushed back, saying it already has safeguards to protect election integrity and describing the process used to create the federal list as highly suspect.
Two lower courts have already refused the administration’s request. On 28 October, US District Judge David Carter rejected the Justice Department’s bid for a temporary restraining order, writing that never before in American history had the federal government, on the eve of an election, sought to coerce a state into abandoning its own constitutional election procedures. Judge Carter also said the administration had failed to provide sufficient evidence that it used a credible process to build its list.
The San Francisco-based 9th US Circuit Court of Appeals declined the request again on Friday, in a 2-1 decision. Judges Mark Bennett, appointed by Trump, and Gabriel Sanchez, appointed by former President Joe Biden, concluded that the federal government has no power to dictate to states how to run elections, and warned that forcing California to use the list could bar valid votes from being cast and jeopardise the Los Angeles County election. They cited the longstanding Purcell principle, under which courts avoid changing election rules at the last minute.
The dissenting judge, Patrick Bumatay, also a Trump appointee, called the administration’s request a modest remedy, arguing that it would not cancel any vote but would allow time to verify the eligibility of suspected noncitizens. Election law experts quoted in coverage of the filing were sceptical of the appeal’s prospects: Rick Hasen of the University of California, Los Angeles, described it as a Hail Mary petition seeking an extraordinary remedy that exceeds the federal government’s powers under election law and comes too close to the election.
The actual number of ballots in dispute is likely to be far smaller than 20,000. County election officials have found that many people on the federal list did not have active voter registrations and were not mailed ballots, and data scientists at UCLA’s Voting Rights Project who were given access to the list under a court order found that 42 per cent of the names do not appear on California’s current voter roll. Tens of millions of voters nationwide have already cast early ballots.
The case is the latest escalation in a broader federal campaign over election administration. Trump has alleged, without evidence, that noncitizens are influencing election outcomes by voting illegally, and his administration has tried to expand the federal government’s role in elections. The Supreme Court already rebuffed one such effort in September, rejecting the administration’s attempt to give the US Postal Service extraordinary power to withhold certain mail ballots.
The timing adds to the stakes. Democrats are near certain, according to polls, to retake the House of Representatives and have a real chance of winning the Senate, while early voting has already set records, with more than 51 million ballots cast before election day. The Supreme Court has not yet said whether it will act before Tuesday, and if it does, its decision could affect how California handles any ballots tied to the disputed list as counting begins.
For California officials, the case is about who controls elections under the Constitution, which gives states and Congress, not the executive branch, responsibility for regulating federal elections. For the administration, it is about preventing votes it says may be unlawful from becoming impossible to separate once counted. Whatever the court decides, the dispute has already put the country’s highest court at the centre of a voting fight in the final hours before voters choose the next Congress.
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