The Justice Department asked the Supreme Court on Monday, November 2, to order California to set aside mail ballots cast by more than 20,000 people the federal government says are likely noncitizens, one day before the midterm election.
The emergency application, signed by Solicitor General D. John Sauer, seeks an injunction pending appeal and, while the justices consider it, an immediate administrative injunction. Applications from the Ninth Circuit go first to Justice Elena Kagan as circuit justice, who can act alone or refer the request to the full Court.
What the government is asking for
The application does not ask the Court to throw out any ballot. It asks for an order that California "segregate mail ballots from persons whom the United States has identified as likely noncitizens" until a court can decide whether those votes are lawful. The legal hook is 18 U.S.C. 611, the federal law that makes it unlawful for a noncitizen to vote for President, Senator or a member of the House.
The government's main precedent is a 2020 order from Justice Samuel Alito in a Pennsylvania case, which directed that mail ballots arriving after the legislature's deadline be kept apart and, if counted, counted separately. The application argues that the Purcell principle, which warns federal courts against changing election rules close to an election, protects voters deciding how and where to vote and does not apply once ballots are already cast.
The filing also describes how the list was built. According to the application, U.S. Citizenship and Immigration Services ran a public version of California's voter roll through Accurint, a commercial data platform, then had investigators manually review the remaining names before Homeland Security Investigations conducted a further review.
What the lower courts said
Three of the four federal judges who have ruled on the request have rejected it. U.S. District Judge David Carter denied a temporary restraining order on October 28, finding the United States unlikely to have standing or a cause of action, unlikely to win on the merits and that the relief could violate other federal election laws, as we reported at the time.
On October 30 a Ninth Circuit panel of Judges Mark Bennett, Patrick Bumatay and Gabriel Sanchez denied an injunction pending appeal in an unsigned order. "We decline the United States's invitation to contravene the Elections Clause by undermining the Constitution's plain text," the majority wrote. It also quoted Carter's finding that granting the request "would provoke catastrophic change, upending the administration of the election." Bumatay dissented, and his dissent supplies much of the language in the Supreme Court application, including his description of segregation as a "modest remedy."
California, Secretary of State Shirley Weber and Los Angeles County Registrar Dean Logan are the respondents, along with civil rights groups that intervened, among them LULAC and the NAACP. A study filed by one immigrant rights group in a separate case found U.S. citizens on the federal list.
Our timeline of the case
By our count the dispute has reached the Supreme Court 21 days after the government handed California its list.
October 12: The United States gives the list to state and county officials and asks them to sequester the ballots, according to the Ninth Circuit order.
October 15: The United States sues in federal court in Los Angeles, 3 days later.
October 19: The government asks Judge Carter for a temporary restraining order.
October 26: The Ninth Circuit dismisses a first appeal for lack of jurisdiction, after the government appealed before Carter had ruled. We covered the argument in that appeal.
October 28: Carter denies the restraining order.
October 30: The Ninth Circuit denies an injunction pending appeal, 2 to 1.
November 2: The application reaches the Supreme Court.
The calendar the justices face
The application notes that California law generally counts mail ballots postmarked by Election Day and received within seven days, which puts the receipt deadline at November 10. The Ninth Circuit order cites a state certification deadline of December 11. By our arithmetic that leaves 38 days between Election Day and certification, and 31 days after the last mail ballots can arrive. Los Angeles County has told the courts its election management system has no function for setting aside ballots of designated voters, which is why the timing argument matters as much as the legal one.
If the Court grants an administrative injunction, California would have to begin separating ballots while the justices decide the application. If it denies relief, the government's appeal continues in the Ninth Circuit, and Judge Carter has a hearing set for November 13 on motions by the state and Los Angeles County to dismiss the case.
Update, November 3: The Supreme Court denied the application on the evening of November 2 in a one-sentence order with no noted dissent. Justice Kagan referred it to the full Court. Read our follow-up.
Two Taps News stories summarize reporting and the analysis discussed on Two Taps and Friends. They are not legal advice. Read our standards.
