The Trump administration on Monday asked the Supreme Court to take its appeal in a case where it has unsuccessfully sought to block California from counting the mail-in ballots of about 20,000 voters whom the Department of Justice suggests may not be U.S. citizens.
The DOJ's petition to the Supreme Court came three days after the 9th Circuit U.S. Court of Appeals rejected the department's bid to block a lower federal court's injunction, which allowed the ballots to be counted.
The petition comes a day before Election Day. The Supreme Court could act on the petition at any time, but there is no deadline.
The midterm elections will determine which parties hold majorities in both chambers of Congress.
The DOJ sued the state of California on Oct. 15 in U.S. District Court in Los Angeles. The civil complaint sought to prevent state election officials from tabulating mail-in ballots "from likely non-citizens in the upcoming federal election until the voter's citizenship status can be determined."
The DOJ previously had given Los Angeles County officials a thumb drive containing names of voters the department suggested could be non-citizens, who by law are barred from voting in federal elections.
Last Wednesday, Judge David Carter denied the DOJ's request that he order California officials to set aside mail ballots from alleged non-citizens named on a list prepared by the Department of Homeland Security, and not count their votes until their citizenship is confirmed.
"This case is about the right of every American citizen to vote in a free and fair election," Carter said in his ruling.
"Never before in American history has the federal government, on the eve of an election, sought to coerce a state and local government to abandon their own Constitutional elections procedures and bend to the will of the Executive Branch," Carter wrote. "In bringing this lawsuit, the Executive would have this Court believe that it reigns as a sole sovereign. But California and its people are sovereign, too."
The DOJ then appealed that ruling to the 9th Circuit, which denied the appeal.
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