Supreme Court Turns Down DOJ Bid to Set Aside California Mail Ballots

The U.S. Supreme Court on Monday refused a Trump administration request to intervene in a fight over California mail ballots, one day before Election Day. The Justice Department had asked the court to require that ballots from more than 20,000 people on a federal list of suspected noncitizens be set aside rather than counted with the rest.

According to Fox News, Justice Elena Kagan denied the application without comment and did not refer it to the other justices. NPR reported that the denial came just hours after the appeal was filed. The ruling leaves in place lower-court decisions that declined to order the segregation of the ballots.

What the Justice Department argued

The administration said its request was limited and would not cancel any votes. According to Fox News, the department argued that the order would preserve the ballots while their eligibility is investigated. CBS News reported that Solicitor General D. John Sauer called it a “modest remedy” meant to keep ballots from noncitizens from diluting valid votes.

The department’s central point was about timing. In a filing quoted by both Fox News and CBS News, the government said that once the challenged ballots are mixed with lawful ones, they cannot be pulled back out. Segregating them now, it argued, is the only way to keep a court able to grant relief after a full hearing of the case.

The dispute traces to an Oct. 15 Justice Department lawsuit, Fox News reported. The department accuses California of obstructing enforcement of a federal law that bars noncitizens from voting in federal elections, and says the state violated the Supremacy Clause of the Constitution.

What California and the courts said

California and Los Angeles County argued that the federal list is unreliable and that creating a new system to separate ballots while voting is already underway is not workable. California says its safeguards against noncitizen voting are strong and that errors on the federal list could strip eligible voters of their rights, according to Fox News.

Courts have so far sided with the state. U.S. District Judge David Carter, appointed by President Bill Clinton, wrote that people who have met California’s registration requirements must not lose a core right because of unfounded allegations based on a flawed process, CBS News reported.

A divided 9th U.S. Circuit Court of Appeals panel then rejected the department’s request on Friday by a 2-1 vote. NPR reported that Judges Mark Bennett and Gabriel Sanchez wrote there was a material risk that granting the request would lead to disenfranchisement and could jeopardize the county’s entire election. They cited the Purcell principle, which discourages changing election rules close to an election, along with states’ constitutional authority over elections and the National Voter Registration Act, which bars systematic removal of ineligible voters within 90 days of a federal election. Judge Patrick Bumatay dissented.

Why it matters for voters

For California voters, the practical effect is that ballots cast by people on the federal list are not being held apart from the rest. According to CBS News, more than 6 million mail ballots had been returned statewide as of Sunday, and the state has more than 23 million registered voters. Voting has been underway since early October.

The number of ballots actually in dispute may be far smaller than the figure on the list. NPR reported that county election officials found many people on the department’s list did not have active registrations and were not mailed ballots. Data scientists at the UCLA Voting Rights Project, who obtained access to the list through a court order in a separate lawsuit, found that 42% of the names do not appear on California’s current voter roll, and that the list includes naturalized citizens, NPR said.

The stakes extend beyond one state. California has 52 House seats, and Fox News noted that Democrats need a net gain of four seats to take control of the chamber.

A wider clash over election authority

The ruling is one piece of a larger conflict. NPR reported that the Justice Department has sent subpoenas to California election officials in recent weeks and reminded them that they could face criminal prosecution for allowing ineligible voters to cast ballots. A federal judge in San Francisco issued a temporary restraining order late Friday barring the administration from threatening or coercing officials to stop processing ballots of registered voters the government alleges are ineligible. The government has appealed that order.

On Monday evening, Fox News reported, Chief Judge James Boasberg of the federal court in Washington, D.C., said it was “likely” the administration violated the Constitution by taking over responsibilities for elections from the states and Congress. He issued an injunction blocking the administration from making requests of California over its mail-in ballots.

The underlying lawsuit continues, and the federal government’s appeal of the San Francisco order is pending.

Around Prague, based on reporting by Fox News, NPR, CBS News