The Trump administration asked the Supreme Court on Monday to require California to segregate mail ballots from roughly 20,000 people the Justice Department has flagged as likely noncitizens, putting the dispute before the justices one day before the midterm election. The emergency application, docketed as No. 26A624 under the caption United States v. California, seeks an injunction pending appeal and was submitted to Justice Elena Kagan, who handles emergency matters arising from California.
Solicitor General D. John Sauer called the request a "modest remedy" meant to keep any ballots cast by noncitizens from diluting valid votes. "Once California commingles the challenged ballots with lawful ones, there is no way to get the challenged ballots back," Sauer wrote. "The only way to preserve the district court's ability to grant relief to the United States after a full merits proceeding, therefore, is to segregate the challenged ballots now." Setting the ballots aside would not discard anyone's vote, he argued, and would give officials time to confirm whether the people on the list are eligible, the New York Post reported.
The filing also took on warnings from the state and the lower courts that such an order would sow chaos. "That doomsday prediction ignores that segregating ballots is a routine remedy when the lawfulness of ballots is questioned," Sauer wrote, according to The Hill. If the people the government identified, or even some of them, turn out to be noncitizens voting unlawfully, he wrote, the United States will suffer irreparable harm once their ballots are mixed in with lawful ones.
The fight began in October, when the Justice Department sent California's secretary of state and Los Angeles County's top election official a list of 20,000 people it said were registered to vote but were not citizens. The department demanded that any ballots those people returned be set aside and left uncounted until their citizenship could be checked, then sued the state and Los Angeles County Registrar-Recorder Dean Logan. The government says a federal law barring noncitizens from voting gives it the authority to seek the order. First Assistant U.S. Attorney Bill Essayli said last month that the department wanted only to sequester ballots from suspected noncitizens, and he called the 20,000 figure "the floor."
Monday's request followed three losses for the government in the lower courts last week. U.S. District Judge David O. Carter declined on Wednesday to issue a temporary restraining order, writing that people who meet California's registration requirements "must not be deprived of a core right merely because of unfounded allegations stemming from a procedure rife with uncertainty and errors," CBS News reported. Earlier in the week, a Ninth Circuit panel turned away the department's bid to go around the trial judge, and on Friday the same panel ruled 2 to 1 against ordering the ballots separated, warning of "potentially catastrophic effects on the entire system." Judge Patrick Bumatay dissented, cautioning that "once those ballots are processed, it would be impossible to identify them," the Post reported.
State and county officials have challenged the list itself. Los Angeles County officials said only 7,035 of the names had county addresses and that some people on it were confirmed to be citizens born in the United States, and few details have been made public about how the list was assembled, the Post reported. California says it is not feasible to verify citizenship this late in the election and has criticized the administration for refusing to say who supplied the names, while Democrats and immigration groups have warned that the case could disenfranchise eligible voters.
California Attorney General Rob Bonta, whose office is defending the state, said he had strong reason to expect another win. "This latest move reeks of desperation and is another attempt to undermine our elections and trample on the rule of law," Bonta said. He urged Californians who have not yet voted not to wait until Election Day.
Voting in California has been underway since early October. The state has more than 23 million registered voters, and more than 6 million mail ballots had been returned as of Sunday, CBS News reported, citing the secretary of state's office. By Monday afternoon Kagan had not set a deadline for California to respond, and she can rule on the request herself or refer it to the full court, The Hill noted. The Supreme Court's docket showed no order or call for a response.
The litigation continues on other tracks. Carter has scheduled another hearing for Nov. 13, and California's deadline to certify results is Dec. 3, the Post reported. The administration has also subpoenaed local election officials and announced criminal charges against alleged noncitizens accused of trying to register to vote. At least three employees of the Los Angeles County registrar's office have been ordered to appear at the federal courthouse in Santa Ana on Nov. 4, the morning after the election.