The Trump administration asked the Supreme Court on Monday to require that California set aside 20,000 mail-in ballots that the administration claims have been provided to noncitizens.
The emergency application to the justices came after a divided federal appeals court rejected the administration’s arguments that California officials should impound the ballots for further scrutiny.
Legal experts have been skeptical of the Trump administration’s arguments in the case. Filing just one day before the midterm elections may forestall a ruling in the case — and a potential loss for the administration — until after Election Day.
The request requires the Supreme Court to consider how much power the federal government has to order states to make last-minute changes to their vote-counting procedures. Under the Constitution, states have responsibility for administering elections. The Justice Department has claimed that it is empowered by a federal law that makes it illegal for noncitizens to cast ballots.
In their emergency application, lawyers for the administration urged the justices to grant what they called a “modest remedy,” requiring California to separate ballots of “citizens and suspected noncitizens.” Solicitor General D. John Sauer wrote that such an order by the court “would not cancel any vote but would allow time to verify the eligibility of suspected noncitizens.”
The legal challenge to 20,000 California ballots is part of a broader effort by the administration to argue that the elections could be marred by illegal votes by noncitizens. The effort comes as polls show Republicans could lose control of one or both chambers of Congress and as President Trump has sought to cast doubt on the validity of the vote, despite little evidence of widespread problems with illegal voting. California officials have said the voter list provided by the Trump administration is filled with errors.
As the lawsuit has wound through the lower courts, the administration has also threatened criminal charges over claims of noncitizens voting, including charging 28 people with violating federal election laws and subpoenaing county election workers in California.
The Justice Department sent the list of 20,000 names to Los Angeles County elections officials in October, claiming that those ballots should be separated because the names had been flagged through a government process as potential noncitizens. Officials have been vague about exactly how the list was prepared, and county officials have said that the list appeared to include people with addresses throughout California. Only 7,035 names on the list sent to Los Angeles were listed with addresses in Los Angeles County. Officials confirmed others were born in the United States and were citizens.
Shortly after, the Justice Department sued to stop the counting of mail-in ballots sent to people on the list until their citizenship could be verified.
On Friday, a divided three-judge panel on a federal appeals court rejected arguments by the Justice Department to segregate the contested ballots, finding that the administration had overstepped its bounds by interfering with the state’s role in setting its election rules. The panel also cited a principle repeatedly upheld by the Supreme Court that federal courts should avoid ordering changes to how ballots are counted too close to an election.
That same panel of federal judges had already rejected an appeal in the same case earlier in the week, declining to leapfrog a trial judge.
That judge, David O. Carter, then sided with California officials, writing that the federal government’s request could “wreak havoc” on state election administration and “create a chilling effect on election workers and voters alike.”
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