By Matthew Vadum
Contributiing Writer
The Supreme Court late on Monday rejected a Department of Justice request to order California to sequester about 20,000 mail ballots the department says likely belong to noncitizens, the day before Election Day.
The emergency application came after a federal district judge and the U.S. Court of Appeals for the 9th Circuit turned down the request.
The Supreme Court did not provide reasons for its decision. No justices dissented.
U.S. Solicitor General D. John Sauer said in the emergency filing earlier in the day that the justices urgently needed to act. “Once California commingles the challenged ballots with lawful ones, there is no way to get the challenged ballots back,” he said.
“California admits that there is no way to trace a ballot after it is processed,” he said, quoting a dissenting 9th Circuit judge in a prior ruling in the case.
California officials dispute the accuracy of the list compiled by the DOJ.
In the lower courts, they argued that the federal government has no standing to sue a state in federal court over how the state administers elections, that California’s own citizenship verification system already addresses noncitizen voting, and that segregating the ballots would violate federal election laws and risk disrupting the count.
The Trump administration has asked the nation’s highest court to direct California to temporarily set aside the ballots from individuals on its list and hold off on counting them until the voters can be verified as U.S. citizens.
The DOJ stated that California had failed to meet a deadline to complete a review of the suspected noncitizens, some of whom the department said had mailed in ballots.
President Donald Trump has said on multiple occasions that states are not doing enough to prevent noncitizens from voting.
The U.S. Constitution gives states primary authority to administer elections, but the federal government enjoys some oversight.
Acting Deputy U.S. Attorney General Trent McCotter said California has “refused to work with the federal government to protect against noncitizen voting, which dilutes lawful votes,” so the DOJ filed an emergency application to require the state to segregate the mail ballots until the voters’ citizenship can be verified.
“We will continue pursuing every available legal avenue to protect the integrity of our elections and ensure federal law is enforced,” McCotter said in a Monday post on X.
California Gov. Gavin Newsom criticized the DOJ for filing the new Supreme Court application, saying the Trump administration doesn’t know what “no” means after courts rejected its case three times last week.
“After they sat on this for more than three days, they now ask for ‘emergency’ relief on the eve of the election,” he said on X on Monday. “Just another reason their claims are bogus.”
Before that, on Oct. 28, Judge David O. Carter of the U.S. District Court for the Central District of California ruled against the DOJ, allowing the ballots to be counted in the Nov. 3 midterm congressional elections.
Instead of waiting for Carter to rule on the merits, the DOJ filed an emergency application with the 9th Circuit, asking the appeals court to block California from counting the ballots.
On Oct. 26, a three-judge panel of that court ruled 2-1 that it lacked jurisdiction to rule on the matter because Carter had not yet issued his ruling in the case.
The DOJ also appealed Carter’s Oct. 28 ruling to the Ninth Circuit. On Oct. 30, a panel of that court rejected on a 2-1 vote what it called the administration’s “invitation to contravene the Elections Clause by undermining the Constitution’s plain text.”
“If the United States believes different procedures are necessary for vote-by-mail ballots, we believe it should take that suggestion to Congress, not the courts,” the majority said.
“We discern no clear error — there is no feasible way to identify and segregate the ballots of specific individuals without potentially catastrophic effects on the entire system.”
Reuters contributed to this report.
