Supreme Court Rejects Bid to Set Aside California Ballots on Election Eve

The Supreme Court on Monday rejected the Justice Department's last-minute request to force California to set aside mail ballots cast by about 20,000 registered voters the administration says may not be citizens.

The justices acted hours after the department filed its emergency request. The order was one sentence long. No justice publicly dissented. The court did not ask California for a response brief before ruling, a step it usually takes in high-profile cases.

The decision leaves California's ballot procedures in place for Tuesday's midterm elections, which will decide control of Congress.

What the Justice Department asked for

The department said it had identified more than 20,000 people who appear to be registered to vote in California but are likely not U.S. citizens. It asked the court to order California to segregate their mail ballots and hold them uncounted while their citizenship is checked.

Solicitor General D. John Sauer wrote in the filing that once California mixes the challenged ballots with lawful ones, there is no way to get them back. The department said the government had not yet had a full chance to prove its list is valid, and the ballots should be set aside in the meantime.

The department's position is that California is blocking enforcement of the federal law that makes it a crime for noncitizens to vote in federal elections. It has also warned election officials in all states that they could face prosecution if they knowingly allow noncitizens to vote.

What California argued

California said it already has safeguards to protect election integrity, and called the process behind the federal list highly suspect. County election officials found that many of the people on the list did not have active voter registrations and were not mailed ballots, according to NPR's reporting.

The state also argued that the Constitution gives states and Congress, not the executive branch, responsibility for running federal elections.

Two courts said no first

The Justice Department sued California on October 15. On October 28, U.S. District Judge David Carter rejected the department's request to keep the ballots from being counted until the voters were verified as citizens. Carter said the administration had failed to show it used a credible process to build its list.

“Never before in American history has the federal government, on the eve of an election, sought to coerce a state and local government to abandon their own Constitutional election procedures and bend to the will of the Executive Branch,” Carter wrote.

On Friday, a divided panel of the 9th U.S. Circuit Court of Appeals also turned the department down, 2-1. Judges Mark Bennett and Gabriel Sanchez wrote that forcing California to use the list could bar valid votes from being cast and jeopardize the Los Angeles County election. There is, they wrote, no feasible way to identify and segregate the ballots of specific individuals without potentially catastrophic effects on the entire system.

Judge Patrick Bumatay dissented. He called the government's request reasonable, writing that it would not cancel any vote but would allow time to verify the eligibility of suspected noncitizens.

What happens next

Monday's ruling was on the emergency request only. The underlying lawsuit continues. For Tuesday's election, California will count ballots under its existing procedures.

The dispute reached the court on the eve of an election in which tens of millions of voters have already cast early ballots nationwide. California's mail ballots were already well into the count: more than 6 million had been returned as of Sunday, according to the Secretary of State's office, as reported by CBS News.