On the eve of Election Day, the U.S. Supreme Court handed the Trump administration a major defeat, refusing to order California to set aside mail ballots from more than 20,000 people the administration claims may be noncitizens.
The decision came Monday evening, just hours before polls open for Tuesday’s pivotal midterm elections, which will decide control of Congress for the last two years of President Donald Trump’s second term.
A short order with no dissents
The court’s ruling was brief and unsigned. “The application for injunction pending appeal presented to Justice Kagan and by her referred to the Court is denied,” the order read, according to Axios.
The justices gave no explanation for their decision, and there were no noted dissents, The Washington Post reported.
What the administration wanted
The Justice Department had asked the high court to force California and Los Angeles County to pull the challenged ballots aside and keep them separate until each voter’s citizenship could be verified. The administration argued that once the ballots are processed, they get mixed in with all the others and can never be identified again.
“Once California commingles the challenged ballots with lawful ones, there is no way to get the challenged ballots back,” the administration wrote in its appeal.
Government lawyers insisted that segregating the ballots “would not cancel any vote but would allow time to verify the eligibility of suspected noncitizens.”
Strike three in the courts
The Supreme Court’s refusal follows two earlier losses. The Justice Department sued California on Oct. 15, about two weeks before the election. U.S. District Judge David Carter in Los Angeles turned down the request, and on Friday a divided panel of the 9th U.S. Circuit Court of Appeals refused as well.
“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,” wrote 9th Circuit Judges Mark Bennett, a Trump appointee, and Gabriel Sanchez, a Biden appointee, as reported by NPR.
Courts so far have sided with California’s argument that the federal list is unreliable and that building a brand-new system to separate ballots while voting is already underway isn’t feasible.
Questions about the list
The real number of ballots at stake is likely far smaller than 20,000, NPR reported, because county election officials found that many people on the Justice Department’s list didn’t have active voter registrations and were never mailed ballots.
After a judge forced the government to hand over the list, data scientists reported that roughly 9,000 of the people on it aren’t even on California’s voter rolls, according to The Independent.
Judges have repeatedly found errors in the administration’s lists, Axios reported, and one judge noted that when the administration claimed it had verified more than 100 people in Nevada as noncitizens, the state showed they were in fact citizens.
California fires back
California Attorney General Rob Bonta said the administration’s request “reeks of desperation” and called it “another attempt to undermine our elections and trample on the rule of law.”
Gov. Gavin Newsom, who had warned federal judges that he feared federal agents could try to seize ballots and voting equipment, issued a blunt warning on Monday. “If Trump tries to meddle with California’s ballots, you can be sure as hell that we’ll prosecute those who help him,” he said. “Californians deserve a free and fair election, and that is exactly what we’ll deliver.”
The Justice Department has said California “refused” to work with the federal government to combat noncitizen voting, and officials vowed to keep “pursuing every available legal avenue.”
What happens now
With the Supreme Court declining to step in, California’s ballot counting goes ahead as planned. More than 6 million Californians had already voted before Monday, according to The Independent, and Election Day is Tuesday, Nov. 3.
The ruling is the latest setback in what The Washington Post described as the Justice Department’s aggressive but largely unsuccessful legal campaign to influence how states run their elections ahead of the midterms.