President Donald Trump on Monday urged the Supreme Court to force California to set aside potentially thousands of ballots the Justice Department claims may have been cast by noncitizens, a longshot request that multiple lower courts have rejected.
The appeal puts the Supreme Court’s 6-3 conservative majority in the position of weighing in on Trump’s sweeping allegations of widespread noncitizen voting based on an uncertain record and an exceedingly fast timeline.
Tens of millions of voters have already cast early ballots nationwide.
How the conservative Supreme Court has rewritten the rules for the midterms
On Friday, the 9th US Circuit Court of Appeals barred the administration from intervening in California’s mail-in ballot counting, concluding that the federal government has no power to dictate to states how to run elections.
“If the United States believes different procedures are necessary for vote-by-mail ballots, we believe it should take that suggestion to Congress, not the courts,” the appeals court wrote in a 2-1 decision that was issued by US Circuit Judges Mark Bennett, a Trump nominee, and Gabriel Sanchez, who was named to the bench by former President Joe Biden.
Following the president’s unfounded claims of mass noncitizen voting, the Justice Department claims it has identified some 20,000 people on California’s voter rolls who may be noncitizens. It asked state officials to set aside any ballots cast by those people and to take steps to verify their citizenship before counting them.
DOJ has argued the federal government has a constitutional interest in ensuring that only citizens vote. It also claims that California’s failure to investigate the registered voters the administration has flagged is frustrating enforcement of the federal criminal law banning noncitizen voting.
“Once California commingles the challenged ballots with lawful ones, there is no way to get the challenged ballots back,” US Solicitor General D. John Sauer told the Supreme Court in Monday’s filing.
California and voting rights groups have countered that the federal government’s past claims of noncitizen voters have not withstood scrutiny , that the current claims are based on fuzzy evidence that risks disenfranchising citizens and that the Trump administration doesn’t have legal authority to tell state officials how to handle the issue. Those are arguments that found purchase in lower federal courts that ruled against Trump.
“The district court found that the risks that noncitizens are voting are, at best, uncertain, and also tempered by California’s established voter-eligibility procedures,” the 9th Circuit wrote Friday. “In contrast, there is a material risk that granting the United States its requested relief would result in disenfranchisement.”
In his dissent, US Circuit Judge Patrick Bumatay wrote that the Trump administration was asking only for a “modest remedy” to halt the mixing of ballots cast by citizens and alleged noncitizens. Once those ballots are processed, all sides agree, it would be impossible to separate them.
“Throughout history, federal courts have acted to protect the voting and civil rights of our citizens by enjoining state action that violates the law,” wrote Bumatay, a Trump nominee. “And common sense also tells us that the federal government shouldn’t have to sit on its hands while a state allows the violation of federal law, especially when the integrity of federal elections is at stake.”
The appeals court also raised an issue that could be decisive for the Supreme Court. Under a legal theory known as the “Purcell principle,” the justices have long warned against federal courts weighing in at the last minute to change the rules of an election.
Trump has had a mixed record with emergency election appeals at the Supreme Court. Most notably, the justices in September rejected the president’s attempt to give the US Postal Service extraordinary power to withhold certain mail ballots. But the court sided with the Department of Homeland Security days later, allowing it to continue providing controversial citizenship data to state election officials.
