Trump administration asks Supreme Court to set aside 20,000 California mail ballots before midterms

Emergency request to the Supreme Court

The Trump administration asked the US Supreme Court on Monday, 2 November, to order California to set aside mail ballots from more than 20,000 registered voters whom federal officials say are likely not citizens. The filing is an emergency application, and it asks the justices to act at once because the midterm elections take place on Tuesday, 3 November. Tens of millions of people have already cast their ballots by mail, so the timetable is extremely tight. The government wants the ballots kept apart until each voter's citizenship can be checked. Solicitor General John Sauer's office wrote that such an order would not cancel any vote but would allow time to verify the eligibility of suspected non-citizens, and the lawyers urged what they called a "modest remedy."

Sauer also warned about what would happen if the contested ballots were mixed with others before the court ruled.

“Once California commingles the challenged ballots with lawful ones, there is no way to get the challenged ballots back.”

It was not immediately clear on Monday whether the justices would rule before polls open on Tuesday.

How the dispute reached Washington

The Justice Department sued California in mid-October and asked a federal judge to bar the state from counting certain ballots until citizenship could be established. Officials said they reached their conclusion by comparing names on a list with federal citizenship data. California mails ballots to every registered voter, and it remains unclear how many people on the list were sent ballots or have returned them.

District Judge David O. Carter in Los Angeles denied the government's request for a temporary restraining order on 29 October. He questioned how reliable the government's method was and warned that a government able to discard votes over unproven accusations would endanger democracy. On Friday, 30 October, a divided panel of the 9th Circuit Court of Appeals turned down the emergency request, with the majority warning that granting it could disenfranchise eligible voters and jeopardize the entire tabulation process.

On Sunday, 1 November, a federal judge also threw out a Justice Department lawsuit that sought to block the certification of Alaska's Senate contest. The Supreme Court had earlier rejected an administration effort to restrict mail voting, in September.

State officials push back

Governor Gavin Newsom said on Friday that the administration's efforts were a desperate and dangerous attempt to interfere with California's election just days before voting. Election officials counter that many people on the list are either U.S. citizens or never had an active voter registration. California has not responded to the appeal before the Supreme Court. Lower courts have repeatedly refused to intervene on the government's side.

Acting deputy attorney general Trent McCotter posted on social media on Monday that California had declined to work with federal officials to guard against non-citizen voting. He vowed to keep fighting in court.

“We will continue pursuing every available legal avenue to protect the integrity of our elections and ensure federal law is enforced.”

The Constitution gives states responsibility for running elections, while the Justice Department says a federal law barring non-citizens from casting ballots empowers it to act.

Timing and what comes next

Legal experts have been skeptical of the administration's arguments, and a filing one day before the election may push any ruling past Election Day. The court must decide how much power the federal government has to force states into last-minute changes to vote counting. California began voting in early October, and hundreds of thousands of ballots have already been processed.

Polls show Republicans could lose control of one or both chambers of Congress. Tuesday's contests will determine control of the House and Senate, and the administration has intensified its focus on alleged non-citizen voting in the final days of the campaign. Trump has questioned the validity of the vote, although there is little evidence of widespread illegal voting by non-citizens.

The request remains pending, and no order has yet required California to set those ballots aside.