Hours before Tuesday’s pivotal midterm elections, the Supreme Court denied a request by the Trump administration to order California to set aside ballots from more than 20,000 residents who the Trump administration claims might be noncitizens who voted illegally.
The Monday evening ruling is the latest setback for the Department of Justice, which has waged an aggressive — but largely unsuccessful — legal campaign to influence how states run elections and to remove people who federal officials contend are likely ineligible from voter rolls before ballots are tallied.
The brief, unsigned order from the high court did not give a rationale. There were no noted dissents. The Supreme Court ruled unusually quickly — just hours after the administration filed its appeal — and without asking California to respond.
“After repeatedly losing in the lower courts, the highest court in the land firmly slapped down the Trump DOJ’s baseless attack on California’s electoral process,” California Gov. Gavin Newsom (D) said in a statement.
California officials have disputed the Trump administration’s claims, saying it appears many people on the list created by the federal government are U.S. citizens or do not have active voter registrations. Researchers have also raised questions about the accuracy of the list.
The Trump administration asked for the mail-in ballots to be segregated because once they are processed they will be commingled with other ballots and will be impossible to identify anymore. The administration ultimately wanted a judge to bar counting the ballots until it can be determined whether the individuals in question are eligible to vote.
“Once California commingles the challenged ballots with lawful ones, there is no way to get the challenged ballots back,” the Trump administration wrote in its appeal. “The only way to preserve the district court’s ability to grant relief to the United States after a full merits proceeding, therefore, is to segregate the challenged ballots now.”
The White House did not immediately respond to a request for comment Monday evening.
President Donald Trump has long insisted voting by noncitizens is rampant but such instances remain rare, according to independent reviews and court findings.
Federal prosecutors have charged more than 180 people with illegally voting or registering to vote as noncitizens since the start of Trump’s second term, according to a Washington Post analysis of those cases. They appear to involve isolated incidents, many with defendants who told authorities they were simply confused about voting rules.
Widespread issues have not been found. Georgia’s secretary of state this year identified 432 possible noncitizens on its rolls over 30 years — a fraction of a percentage point in a pool of millions of voters. In one of the most extensive reviews, a federal judge in 2018 determined that, at most, 39 noncitizens were placed on the voter rolls in Kansas over 19 years, often because of administrative errors.
“Every time the administration’s claims regarding noncitizen voters have been subjected to any sort of scrutiny, they have immediately fallen apart,” said David Becker, executive director of the Center for Election Innovation and Research, a nonprofit group that assists election officials.
In the California case, U.S. District Judge David O. Carter in Los Angeles and a divided panel of the 9th Circuit Court of Appeals ruled against the administration’s request to set aside the ballots in recent days.
“Major concerns remain that granting the United States’ requested relief might result in immense hardship to Defendants and harm the public interest by risking the disenfranchisement of eligible voters and putting the entire tabulation process in jeopardy,” the 9th Circuit majority wrote.
The Justice Department sued California in mid-October to block the counting of the ballots in questions. Administration officials said they identified the more than 20,000 potential voters using government records and data from commercial brokers.
The DOJ has also sent requests and issued subpoenas to county election officials in California, asking them to provide information to determine whether people on the list are citizens.
Carter also said during a court hearing last week he would appoint a special master to examine the Trump administration’s claims.
The Justice Department on Friday, responding to a court order in a separate case, turned its list of almost 21,000 possible noncitizens over to an immigrant rights group, the Coalition for Humane Immigrant Rights.
Data scientists working with the group say they found about 9,000 people on the Justice Department list — more than 40 percent — are not on the state’s rolls of 23.2 million registered voters. The researchers also found dozens of instances in which identifying information for people on this list match, or almost matched, people who are citizens.
That filing came in a lawsuit the immigrant rights group brought against the administration that argues naturalized citizens are at risk of being falsely labeled noncitizens and kept from voting. U.S. District Judge James E. Boasberg in D.C. ruled in the group’s favor Monday and issued an injunction barring the administration from demanding that California election officials segregate ballots based on their allegations about noncitizen voting.
The Justice Department is pursuing legal challenges to electioneering on a number of fronts.
Officials have notified Washington state officials they have found about 400 people on voter rolls that may be noncitizens. The state disputes that claim, and immigrant advocates have sued to block the voters from being removed from rolls.
In another case, the Justice Department is seeking to block the certification of Alaska’s Senate election if Republican Sen. Dan S. Sullivan loses the race. The Justice Department argued a loss by Sullivan could be because a candidate with a nearly identical name, Dan J. Sullivan Jr., is also on the ballot. Democrat Mary Peltola is also in the race.
A federal judge threw out the case on Sunday, but the Justice Department is appealing.
In a third case, unions, the NAACP and the League of United Latin American Citizens sued to block the administration from threatening to prosecute state and local election officials over their handling of ballots.
U.S. District Judge Trina L. Thompson, an appointee of President Joe Biden, found on Friday that the threats violated the Voting Rights Act and the Constitution’s elections clause.
“Defendants’ intimidation, threats, and attempts at coercion force election workers daily to choose between acceding to Defendants’ unlawful demands or adhering to their duties and thereby subjecting themselves to a serious risk of criminal investigation and prosecution,” Thompson wrote in her opinion.
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