On the eve of Tuesday’s midterm elections, the Trump administration has taken its fight over California mail ballots all the way to the U.S. Supreme Court.
Solicitor General D. John Sauer filed an emergency application on Monday asking the justices to order California to set aside, for now, the mail ballots of more than 20,000 people the federal government has identified as likely noncitizens, so their eligibility can be checked before those votes are mixed in with everyone else’s.
What the administration is asking for
“The Court should issue a limited injunction directing California to stop commingling suspected illegal ballots with legal ones,” Sauer wrote, “pending completion of the United States’ appeal to the 9th Circuit and further review in this Court.”
The filing asks the Court to require California “to segregate mail ballots from persons whom the United States has identified as likely non-citizens,” and to enter a temporary administrative injunction to that effect while the justices consider the request, according to the Los Angeles Times.
The request does not ask the Court to throw out any ballots. It asks that the suspect ballots be kept separate until voters’ citizenship can be verified.
How we got here
According to court records, the federal government gave California and Los Angeles County a list of names on Oct. 12 and asked officials to sequester those voters’ ballots so citizenship could be verified before the ballots were removed from their envelopes and counted. State and county officials refused, saying they doubted the list was accurate and reliable. The Justice Department sued on Oct. 15.
A federal district judge denied the government’s request for a temporary restraining order, and a divided three-judge panel of the 9th Circuit Court of Appeals then turned down the administration’s emergency motion. Judges Mark Bennett and Gabriel Sanchez were in the majority.
A sharp dissent
Judge Patrick Bumatay dissented, and his opinion is the heart of the administration’s argument.
“In this case, the federal government believes that 20,000 noncitizens are registered to vote in California. Both state and federal law prohibit aliens from voting in our elections,” Bumatay wrote. “If California receives these suspect ballots, mixes them with legitimate ballots, and then processes them, the potentially illegal votes will be counted toward the election of our representatives, threatening to dilute the vote of eligible citizens.”
He called the government’s proposal “a modest remedy,” adding: “This solution would not cancel any vote but would allow time to verify the eligibility of suspected noncitizens. The district court, and now our court, denies this reasonable request.”
California pushes back
California officials argue the federal list is highly unreliable and likely includes many people who are U.S. citizens, the Associated Press reported. The majority judges also questioned the federal government’s authority to step into the state’s election procedures and warned that the requested order could keep eligible citizens from voting and disrupt counting already underway.
What happens next
The application goes first to Justice Elena Kagan, who handles emergency matters from the 9th Circuit. She can act on it herself, refer it to the full Court, or ask California for a response, which could take days. It’s not yet clear whether the Court will treat the request as an emergency.
With Election Day on Tuesday, Nov. 3, the clock is ticking on whether those 20,000 ballots get a second look before they are counted.