Trump Team Seeks Supreme Court Order to Hold 20,000 California Ballots

Solicitor General D. John Sauer filed an emergency appeal with the Supreme Court on Monday, asking justices to pause the counting of approximately 20,000 mail ballots in California. The administration contends that these specific ballots belong to voters who are likely noncitizens. Sauer urged the Court to issue a limited injunction directing California to stop mixing these suspected illegal ballots with legal ones. He requested that the state segregate the mail ballots while the United States pursues its appeal in the 9th Circuit and further review in the Supreme Court.

The request arrived the day before the midterm election. More than 6.4 million ballots had already been cast as of Sunday, according to the office of California Secretary of State Shirley Weber. Under state law, those ballots are already being counted. The administration argues that emergency intervention is necessary because California law permits ballots to be counted before Election Day. Officials stated that once a ballot is cast in person or removed from its mail envelope, it cannot be resegregated from the total vote count.

Federal judges have previously rejected the administration's efforts to control state voting processes. A federal judge in Los Angeles and a three-judge panel at the 9th Circuit Court of Appeals in San Francisco ruled against the Trump lawyers. The judges stated that the complaint came too late for this election and that the administration was incorrect on constitutional grounds. The 9th Circuit majority, including Judge Mark J. Bennett and Judge Gabriel P. Sanchez, cited a 2013 opinion by the late Justice Antonin Scalia. Scalia wrote that the Elections Clause invests states with responsibility for the mechanics of congressional elections unless Congress adopts a different rule.

The legal dispute stems from a lawsuit filed in mid-October. The administration demanded that California and Los Angeles County set aside vote-by-mail ballots from persons identified by the federal government as likely noncitizens. This demand followed a 48-hour deadline given by Justice Department officials to Weber and Los Angeles County Registrar-Recorder Dean Logan. The list of 20,000 voters was compiled using voter data purchased from California and information from commercial platforms. County officials and analysts with the UCLA Voting Rights Project stated that the lists contain U.S. citizens and individuals who are not registered to vote.

State attorneys argued that complying with federal demands while voting is underway would cause widespread disruption. They warned that the action would disenfranchise legitimate voters incorrectly included in the administration's lists. The Justice Department maintained that the request is a modest remedy. They argued that state and federal authorities can quickly determine citizenship status if the state cooperates. The administration also noted that federal law prevents officials from systematically removing names from voter rolls within 90 days of an election.

The case highlights a divide between state and federal authority over election procedures. The Constitution prescribes that states control the times, places, and manner of holding elections for Senators and Representatives. Congress may alter these regulations by law. The National Voter Registration Act of 1993 allows voters to register by attesting under oath that they are citizens. California follows this standard under state law. The 9th Circuit judges suggested that if the United States believes different procedures are necessary for vote-by-mail ballots, it should take that suggestion to Congress rather than the courts.

Justice Department officials recently brought fraud charges against 28 lawful immigrants in California. These individuals are alleged to have registered or voted in the past despite not being citizens. The charges were filed under a 1996 immigration law that made it unlawful for any alien to vote in a federal election. The Supreme Court has previously frowned on late-breaking, court-ordered rule changes in elections. In November 2020, Justice Samuel A. Alito agreed with Pennsylvania officials to set aside late-arriving mail ballots for separate counting. That order resulted from pandemic-related waivers of state deadlines. The California dispute differs because the state has not changed its voting rules, while the administration seeks a late change in procedure.