The U.S. Supreme Court on Monday evening rejected an emergency request from the Justice Department to force California to set aside mail ballots from about 20,000 voters the administration says may be noncitizens. The unsigned, one-line order noted no dissents and capped a week in which federal judges repeatedly blocked the government’s late push to police voting before Tuesday’s midterm elections.
The order leaves in place rulings by U.S. District Judge David O. Carter in Los Angeles and a divided 9th U.S. Circuit Court of Appeals panel, both of which refused to order the ballots separated. The justices acted without asking California officials to respond, and a hearing in the underlying case is set for Nov. 13.
California has received more than 6 million returned mail ballots and has more than 23 million registered voters, according to CBS News. The Justice Department sent letters to all 58 counties demanding that ballots tied to its list be put aside. State officials say the list is unreliable and that complying could disenfranchise U.S. citizens.
"likely to have the effect of interfering with election administration and disenfranchising lawful voters
— U.S. District Judge Trina Thompson, describing the federal government’s actions
Carter ruled on Oct. 28 that the government’s process for identifying alleged noncitizens was “rife with uncertainty and errors.” A 9th Circuit panel then split 2-1 on Friday, with a majority that included both a Trump appointee and a Biden appointee, and cautioned that the disputed ballots could not be isolated without damaging the wider system.
The Justice Department argued that once questioned ballots are counted alongside lawful ones, the harm cannot be undone. It has charged more than 200 people with illegally voting in past elections, and federal prosecutors in Los Angeles announced six more arrests Monday, according to RedState. Noncitizen voting is a federal crime, but confirmed cases remain rare.
Washington state faced a similar demand: prosecutors told Secretary of State Steve Hobbs to set aside ballots from more than 400 people, and Hobbs said the list included many U.S. citizens.
Threats of Prosecution Against Election Workers
In a separate case brought by unions and civil rights groups including the SEIU, NAACP and LULAC, U.S. District Judge Trina Thompson in San Francisco issued a temporary restraining order on Oct. 30. It bars the Justice Department from threatening election officials with criminal prosecution if they refuse its demands on ballot handling. She found the government likely violated a Voting Rights Act provision against intimidating, threatening or coercing people who help others vote.
The suit cited letters Civil Rights Division chief Harmeet Dhillon sent in July to all 50 states threatening prosecution of local election officials. Thompson’s order runs through Nov. 16, with a hearing on Nov. 13.
Chutkan Bars Voter Lists, but an Appeals Panel Sides With DOJ
On Monday, U.S. District Judge Tanya Chutkan in Washington, D.C., barred the Justice Department and Homeland Security from sending states lists of voters the administration says may not be citizens, and from asking officials to separate those ballots. She said the data may not be reliable, creating a risk that lawful voters are disenfranchised, according to Reuters. The Justice Department said its letters were part of enforcing the federal ban on noncitizen voting, not a distinct policy a court could review.
The administration won one round the same day: Reuters reported that a 9th Circuit panel cleared the government to threaten election officials with prosecution in the case that produced Thompson’s order. Chutkan is not bound by that ruling. A Justice Department spokesperson said Thompson acted without hearing from the government, and the department said it was reviewing its options.
Key Developments
Related disputes reached courts in several states during the final week before the vote.
✓ Supreme Court denies the DOJ’s bid to set aside about 20,000 California ballots
✓ Judge Carter and a 9th Circuit panel reject the ballot-separation request
✓ Judge Thompson bars threats of prosecution; a separate appeals panel later clears them
✓ Judge Chutkan bars DOJ and DHS from sending noncitizen voter lists to states
In Alaska, a federal judge dismissed a Justice Department lawsuit on Sunday that sought to block certification of the Senate election if Sen. Dan Sullivan loses, finding the government lacked standing. The department appealed the same day.
What Happens Next
Voting continues Tuesday regardless of the litigation, and the rulings do not decide whether any individual ballot is valid. The Nov. 13 hearing and the Nov. 16 expiration of Thompson’s order mean the disputes will outlast Election Day. The administration says its steps are needed to prevent illegal votes, while states and civil rights groups say the lists are error-prone and the threats chill participation.
Voters who face intimidation or registration problems can contact the nonpartisan Election Protection hotline at 866-OUR-VOTE (866-687-8683).
Those most at risk of being disenfranchised are naturalized citizens.— U.S. District Judge David O. Carter
Readers should watch the Nov. 13 hearings, any new appeals, and whether the department adds to its criminal cases after the votes are counted.
Sources
- CBS News: Supreme Court rejects Trump's effort to force California to separate mail ballots from alleged noncitizenscbsnews.com(opens in a new tab)
- CBS News: Judge orders DOJ to stop trying to intimidate and threaten California election officialscbsnews.com(opens in a new tab)
- Reuters via KELO: Judge blocks Trump administration from pressuring states over noncitizen votingkelo.com(opens in a new tab)
- Ms. Magazine: Trump Is Still Trying to Intervene in the Midterms, Courts Are Pushing Backmsmagazine.com(opens in a new tab)
- Roll Call: Supreme Court asked to intervene in California ballots caserollcall.com(opens in a new tab)
- RedState: Supreme Court rules on California's emergency motionredstate.com(opens in a new tab)
- Fox News: Supreme Court denies Trump administration request to reverse block on segregating 20K California ballotsfoxnews.com(opens in a new tab)
