On the day before the midterm elections, President Donald Trump’s administration went to the U.S. Supreme Court with an emergency request: order California to pull aside the mail ballots of roughly 20,000 voters the federal government says may not be U.S. citizens.
The appeal, filed Monday by Solicitor General D. John Sauer, came after the administration lost round after round in the lower courts. A federal district judge refused to grant the request, and on Friday a divided panel of the 9th U.S. Circuit Court of Appeals turned it down too.
What the administration wants
In its filing, the administration asked the justices for a “limited injunction directing California to stop commingling suspected illegal ballots with legal ones” while its appeal moves forward. In practice, that means requiring California to segregate mail ballots from people on the federal government’s list until their citizenship can be checked. It also asked for a short-term administrative order to the same effect while the court considers the request.
The emergency application goes first to Justice Elena Kagan, who oversees the 9th Circuit. It is not yet clear whether the court will treat it as an emergency or act before Election Day on Tuesday, November 3.
How the list came about
According to the 9th Circuit’s opinion, the federal government gave California and Los Angeles County the list on October 12 and asked them to sequester every ballot from a name on it. State and county officials refused, questioning whether the list was accurate. The Justice Department sued on October 15, about two weeks before the election and two weeks after ballots had already been mailed to every registered voter on October 1.
California Attorney General Rob Bonta has said the administration itself admitted the list could include U.S. citizens. Bonta said the Los Angeles County Registrar-Recorder reviewed 200 names from the list and found that more than half had cancelled or inactive registrations, 38.9% listed a U.S. birthplace, and 71.2% had no voting history. NPR reported that the actual number of ballots in dispute is likely far smaller than 20,000, because many people on the list did not have active registrations and were never mailed a ballot.
What the courts have said
In Friday’s ruling, 9th Circuit Judges Mark J. Bennett, a Trump appointee, and Gabriel P. Sanchez, a Biden appointee, warned 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.”
The two judges pointed to the long-standing legal principle that election rules should not be changed on the eve of an election, to the Constitution’s grant of authority to states to run their own elections, and to the National Voter Registration Act, which bars states from systematically removing voters within 90 days of a federal election. The third judge on the panel, Patrick J. Bumatay, also a Trump appointee, dissented.
Bonta has called the Friday decision his office’s third win in a week in the fight over the list.
Part of a bigger pattern
The California fight is one of several places where the Justice Department has stepped into this year’s midterms. Reuters reported that the department’s willingness to intervene directly breaks with decades of practice meant to avoid the appearance that federal law enforcement is being used to help one party. In Alaska, the department sought to block certification of the Senate race if Republican Sen. Dan Sullivan narrowly loses, but a federal judge dismissed that lawsuit on Sunday. The department has appealed.
Critics say these moves could feed any attempt to cast doubt on the midterm results, which will decide control of Congress and dozens of governors’ races.
For now, California voters are still casting ballots, and every court that has looked at the administration’s request has said no. Whether the Supreme Court steps in, and how fast, could be one of the last big questions hanging over Election Day.
Based on reporting from the Associated Press, NPR, the Los Angeles Times, the Washington Post and Reuters, and the 9th Circuit’s published opinion.