Supreme Court Refuses to Make California Set Aside Ballots Flagged by Trump Administration

The Supreme Court on Monday refused to order California to set aside mail ballots from more than 20,000 voters whom President Trump's administration has flagged as likely noncitizens. The ruling came with less than a day left before polls opened for Tuesday's midterm elections.

The court's order was a single sentence. The emergency application, filed that morning by the Justice Department, landed with Justice Elena Kagan, the justice assigned to emergency matters from the 9th Circuit. Rather than act alone, she referred it to her colleagues, and the court as a whole turned it down. No justice noted a dissent, and the court did not explain its reasoning.

The speed of the ruling stood out. The application was docketed, referred and rejected on the same day, and the justices acted without first asking California for a written response.

Solicitor General D. John Sauer had framed the request as a modest one. He did not ask the court to throw out any votes. Instead he sought an order requiring the state to keep the challenged ballots apart from the rest until a court could decide whether the people who cast them were eligible. "Once California commingles the challenged ballots with lawful ones, there is no way to get the challenged ballots back," he wrote in the 19-page filing.

Sauer leaned on federal law, which bars noncitizens from voting for president or Congress. If a ballot was cast by a noncitizen, he argued, it was unlawful, and the state had no right to count it. He also warned that the government's harm would keep growing through Nov. 10. Under California law, mail ballots postmarked by Election Day can still arrive and be counted for a week afterward.

Separating the ballots would not burden the state, he argued, noting that California's own rules allow challenged ballots to be set aside. He asked the court for a quick temporary order while it considered the case. It did not grant one.

The administration built its list through a federal review of a publicly available copy of California's voter rolls, using immigration agencies and a commercial data service to check names. On Oct. 13 it gave the list to Secretary of State Shirley Weber and to the registrar in Los Angeles County. Two days later it sued the state, the secretary and the county registrar in federal court in Los Angeles. Several civil rights groups joined the case on California's side.

Lower courts turned the government down at every turn. David Carter, the federal district judge hearing the case, refused on Oct. 28 to order the ballots sequestered. He found the government lacked standing to bring the claim and was unlikely to win, and he questioned whether the people on its list were in fact noncitizens.

On Friday a divided 9th Circuit panel declined to step in. The majority found the government unlikely to win, saw no irreparable harm, and concluded that federal courts should not upend election procedures so close to a vote. It also said California has the power to set its own procedures for checking whether voters are qualified. Judge Bumatay dissented, calling the request reasonable and writing that holding the ballots aside would not cancel any vote.

That was the government's second trip to the appeals court. On Oct. 22, before Carter had ruled, the administration tried to skip ahead, and the 9th Circuit dismissed that appeal for lack of jurisdiction. Two judges in that majority wrote separately, one concluding the claim also failed on its merits and the other that it came too close to the election for any relief. Bumatay dissented then too.

Judges who examined the federal list found factual errors in it and warned that acting on it could strip eligible citizens of their votes.

The ruling leaves the ballots in question to be handled like any others. The government's appeal remains pending in the 9th Circuit, but by Sauer's own account, ballots that have already been mixed into the count cannot be traced back to the voter.