The Supreme Court on Monday rejected a push for California to set aside thousands of mail ballots from people President Donald Trump’s administration claims are noncitizens, a decision that comes on the eve of the pivotal midterm elections.
The high court refused to intervene in a case involving 20,000 people the Republican administration flagged as likely noncitizens on the largely Democratic state’s voter rolls.
It was the latest in a flurry of election-related litigation the day before the midterm elections, which will decide control of Congress for the last two years of Trump’s second term.
In California, the Trump administration had asked the high court to set aside the challenged ballots until the voters’ citizenship status could be verified. But officials there said that the list appeared to be filled with errors and that setting the ballots aside could effectively disenfranchise legal voters.
The high court did not detail its reasoning, as is common in emergency decisions. The justices previously rejected Trump’s push to restrict mail ballots around the country in September, even though the justices have sided with his administration in a series of other emergency docket appeals.
The Republican Trump administration has prioritized identifying noncitizen voters this year, despite them being rare.
A district court judge previously denied the Justice Department's request and warned that the demand could disenfranchise citizens in Tuesday's midterm elections to determine control of Congress.
Also on Monday in Washington, another federal judge ruled against the administration’s efforts to make last-minute demands of California election officials, finding they violated the U.S. Constitution.
“The Executive Branch has likely violated the Constitution’s Elections Clause, which commits authority over election rules to the states and Congress alone,” wrote Chief Judge James Boasberg.
The administration, for its part, said segregating the ballots was a modest request that would eventually allow legal votes to still be counted.
The administration has faced a remarkable string of losses in court in its push, as well as criticism for waiting until a few weeks before the election to make its demands of California election officials with a list that even the Department of Justice admits is not entirely reliable.
During a hearing over whether to lift her own order forbidding the administration from threatening to prosecute election workers who let potentially illegal voters cast ballots, District Court Judge Trina Thompson drilled down on reports of widespread inaccuracies in the Justice Department's data.
“Would you agree there's a high error rate?” Thompson asked Kenneth Kao, a Justice Department attorney.
“That's a fair statement,” Kao said. “That's why we ask for the registrars' aid in verifying these are all valid voters.”
At the same time, Bill Essayli, the federal prosecutor running the Justice Department's Los Angeles office, said at a news conference he was highly confident the people on the list were not entitled to vote.
“This isn’t speculation. This isn’t a theory,” Essayli said, later conceding there may be errors on the list.
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Voting has been underway in California since early October. All of the state’s roughly 23 million registered voters are mailed a ballot. Hundreds of thousands of ballots have already been processed. California election officials have said that finding and setting aside the challenged ballots now would be logistically impossible.
California Attorney General Rob Bonta, a Democrat, said the appeal “reeks of desperation and is another attempt to undermine our elections and trample on the rule of law.”
Lower courts have sided with the state, with a district judge warning that segregating ballots would “wreak havoc” on the midterm elections and erode trust in the democratic process.
“If the Executive can discount votes and threaten an ongoing election due to unproven allegations, then our democracy is in danger,” wrote U.S. District Judge David O. Carter, who was nominated by President Bill Clinton, a Democrat.
A 2-1 appeals court panel upheld his order, with one judge appointed by Trump and another appointed by President Joe Biden, a Democrat, voting in favor. The third judge on the panel, also appointed by Trump, argued in a dissent that California’s unwillingness to separate the ballots encourages the “violation of federal law.”
The Justice Department has sought to move the case along quickly, unsuccessfully asking an appeals court to intervene early.
