The Supreme Court on Monday, November 2, denied the Justice Department's emergency request to force California to set aside mail ballots cast by about 20,000 people the federal government says are likely noncitizens, leaving the state free to process them as usual on Election Day.
The ruling came the same day the Solicitor General filed the application, which we covered on Monday. Voters across the country cast ballots Tuesday, and California counts mail ballots under its own rules, not under the procedure the government asked the justices to impose.
What the order actually says
The full text of the order, docketed as 26A624, United States v. California, is one sentence: "The application for injunction pending appeal presented to Justice Kagan and by her referred to the Court is denied."
That wording matters. Justice Elena Kagan handles emergency matters from the Ninth Circuit, and some early reports said she acted alone. The order says otherwise. She referred the request to the full Court, and the Court denied it. The order gives no reasons and notes no dissent, which means no justice publicly recorded a vote the other way, though it does not tell us how each justice voted. CBS News reported that the Court ruled without first asking California to file a response.
What the government wanted
Solicitor General D. John Sauer asked for an injunction pending appeal ordering California to segregate the mail ballots of voters on a federal list built from commercial data and immigration records. He wrote, as CNBC reported, that "the United States is likely to succeed on the merits of its appeal." The legal hook was 18 U.S.C. 611, the federal law that makes voting by noncitizens in federal elections a crime.
Every court to hear the request has said no. U.S. District Judge David Carter denied a restraining order on October 28, as we reported. A Ninth Circuit panel denied an injunction pending appeal on October 30, 2 to 1, with Judge Patrick Bumatay dissenting.
Our count of the rulings
By our count the government's request has now been turned down at every level of the federal courts in eight days. This timeline is our own, built from the court orders and the state attorney general's release.
October 26: The Ninth Circuit dismisses a first appeal because the government had not given Judge Carter time to rule. We covered the argument in that appeal.
October 28: Judge Carter denies the restraining order.
October 30: The Ninth Circuit denies an injunction pending appeal, 2 to 1.
November 2: The Supreme Court denies the application.
Counting Carter, the three Ninth Circuit judges on the October 30 panel and the nine justices, 13 federal judges have acted on the request in the past week. Exactly one, Bumatay, is on record siding with the government.
The numbers behind the dispute
CBS News reported that more than 6 million mail ballots had been returned in California out of more than 23 million registered voters. By our arithmetic, even if every person on the 20,000 name list had already returned a ballot, that would be about one third of 1 percent of the mail ballots returned so far, and under one tenth of 1 percent of registered voters. Researchers have found U.S. citizens on the list, a federal judge credited similar evidence on Monday, and that is the core of the state's objection.
What California said
Attorney General Rob Bonta called it the state's fourth win in the fight. "This latest decision should put an end to the Administration's attempt to disrupt California's elections through emergency court orders," he said in a statement Monday. The release also said the state would remain vigilant.
What happens next
The Supreme Court's order ends only the emergency phase. The government's appeal of Carter's ruling remains in the Ninth Circuit, and Carter has a hearing set for November 13 on motions by the state and Los Angeles County to dismiss the case. California counts mail ballots postmarked by Election Day and received within seven days, which puts the receipt deadline at November 10.
The Supreme Court was not the only setback for the government on Monday. In a separate case in Washington, Chief Judge James Boasberg barred the Department of Homeland Security from issuing demands to California election officials to segregate ballots based on the same lists, while turning away a parallel suit by Democratic Party committees for lack of standing. We break down both Boasberg rulings here.
Two Taps News stories summarize reporting and the analysis discussed on Two Taps and Friends. They are not legal advice. Read our standards.
