The Trump administration asked the Supreme Court on Monday to make California set aside the mail ballots of more than 20,000 people it calls “likely” noncitizens, one day before Election Day.
What happened
Solicitor General D. John Sauer filed a 19-page emergency request with the justices on Monday morning, Nov. 2. He wants California to keep those ballots separate until the voters’ citizenship can be checked. The solicitor general is the lawyer who argues for the federal government at the Supreme Court.
“Once California commingles the challenged ballots with lawful ones,” Sauer wrote, “there is no way to get the challenged ballots back.”
California says the federal list is unreliable and includes many U.S. citizens. Attorney General Rob Bonta has called the case “weak.” Secretary of State Shirley Weber has said she will not disenfranchise voters based on an “unsupported and likely inaccurate ‘belief’.”
How the case got here
- Oct. 15: The Justice Department sued California in federal court in Los Angeles.
- Oct. 28: U.S. District Judge David Carter refused to order the ballots set aside.
- Oct. 30: A 9th Circuit appeals panel rejected the government’s emergency request 2-1.
- Nov. 2: The administration turned to the Supreme Court.
What each side argues
The government says federal law bars noncitizens from voting in federal elections, so any such ballot is unlawful. Sauer argued that setting ballots aside is a standard remedy and would not cause California “undue hardship.”
The appeals court majority saw it differently. Judges Mark Bennett, a Trump appointee, and Gabriel Sanchez, a Biden appointee, warned of “a material risk” that the request “would result in disenfranchisement and could jeopardize the County’s entire election.” The third judge, Trump appointee Patrick Bumatay, dissented.
The majority leaned on the Purcell principle. That is a long-standing court rule that election procedures should not be changed right before an election.
Questions about the list
- A UCLA Voting Rights Project analysis found that 42% of the names do not appear on California’s current voter roll.
- Los Angeles County officials found many people on the list had inactive registrations and were not mailed ballots.
- The real number of disputed ballots is likely much smaller than 20,000, according to NPR’s reporting.
What happens next
The request goes first to Justice Elena Kagan, who handles emergency appeals from the 9th Circuit. She can act alone or, more likely, refer it to the full court. The government also asked for a short-term order to set the ballots aside while the justices decide.
There is no deadline for the court to act. California accepts mail ballots that arrive through Nov. 10, a week after Election Day.
Sources: SCOTUSblog, AP News, NPR, CNBC, Axios.
