After Losing Twice in Lower Courts, Trump’s Justice Department Takes Its Fight Over 20,000 California Ballots to the Supreme Court

Trump’s Justice Department has asked the Supreme Court to stop California ballots cast by more than 20,000 registered voters from being counted, after losing the same fight twice in lower courts. The emergency request came Monday, one day before the November 3 midterm elections.

The administration claims the voters on its list are likely noncitizens. It wants the Supreme Court to order California to separate any ballots from people on that list, set them aside and hold off on counting them until each voter’s citizenship is verified. In its filing, the Justice Department argued that once those ballots are counted and mixed in with the rest, there is no way to undo the damage.

An emergency request, sometimes called an emergency application, asks the justices to act quickly on a case before it works its way through the normal appeals process. The Court can rule on its own timeline, and it has not said whether it will take the case or whether it would decide before Election Day.

The fight started in October. The Justice Department sent California its list of names on October 12, about three weeks before the election. California officials refused to set the ballots aside and asked for proof that the people on the list were actually noncitizens. On October 15, the Justice Department sued California and Los Angeles County, claiming the state was blocking enforcement of a 1996 federal law that makes it a crime for noncitizens to vote in federal elections.

The administration then tried to skip ahead. Before the trial judge even held a hearing, it asked the 9th Circuit Court of Appeals, the federal appeals court that covers California, for an emergency order. On October 26, a three judge panel threw that request out as premature in a 2 to 1 decision.

Two days later, U.S. District Judge David O. Carter turned down the administration’s request himself. He ruled that forcing California to set aside the ballots would violate the long standing principle that states run their own elections, and warned it would likely keep eligible voters from having their votes counted. He said the plan could “wreak havoc” on the election. Carter also wrote that he could not find the government’s process for building its list credible, and he pointed out that the Justice Department had won zero of the 26 voter roll lawsuits that courts had decided.

The timing was a problem too. California mails a ballot to every one of its roughly 23 million registered voters, and more than 3.7 million people had already voted by the time Carter ruled. Court filings showed more than 500,000 ballots had already been opened and separated from their envelopes. Los Angeles County officials testified that matching those ballots back to individual voters would be virtually impossible.

The Justice Department appealed again, and on October 30 the 9th Circuit said no a second time, again by a 2 to 1 vote. Judge Mark Bennett, a Trump appointee, and Judge Gabriel Sanchez, a Biden appointee, wrote that granting the request would risk disenfranchising voters and could put Los Angeles County’s whole election in jeopardy. Disenfranchising means taking away a person’s ability to vote or have their vote count. The judges also pointed to the National Voter Registration Act, a federal law that bars states from systematically removing voters from the rolls within 90 days of a federal election.

The real number of ballots at stake is likely far below 20,000. County election officials found that many of the people on the Justice Department’s list did not have active voter registrations and were never mailed a ballot. Multiple studies and state audits have found that voting by noncitizens is rare.

The pressure on California election workers has gone beyond the courtroom. Justice Department officials have warned local election officials they could face criminal prosecution if they do not cooperate with federal demands to set ballots aside. Last week, the department sent grand jury subpoenas to employees at the Los Angeles County Registrar of Voters, and federal prosecutors sent lists of alleged noncitizens to at least 18 other California county registrars with the same demand.

Trump took a swipe at the Supreme Court over the weekend after Carter’s ruling and brought up his failed 2020 election challenge. Now his administration is asking that same Court to give it the win two lower courts would not. Polls in California open Tuesday morning, and ballots will keep being counted as the Court decides whether to act.

Dee Dee Henderson

Dee Dee Henderson is a Poli Alert journalist covering national politics, elections and the policies that hit closest to home for Black communities, from voting rights and the economy to the courts. She reports the facts first and isn't afraid to say what they mean, and her commentary pieces are clearly labeled as opinion. Her midterm coverage breaks down deadlines, ballot measures and the races that will decide who holds power in Washington.

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