Sauer Takes California Noncitizen Ballot Fight to Supreme Court

The Trump administration asked the Supreme Court on Monday to order California to set aside mail ballots cast by roughly 20,000 people the federal government says are likely noncitizens, filing the emergency request one day before the midterm elections, according to CBS News and the Los Angeles Times.

Solicitor General D. John Sauer asked the justices for what he called a “limited injunction directing California to stop commingling suspected illegal ballots with legal ones,” pending the government’s appeal, the Los Angeles Times reported. He also asked for an immediate administrative injunction while the Court considers the request, according to the Times.

BREAKING: DOJ appeals to Supreme Court to reverse block on segregating California ballots of more than 20K possible voters pic.twitter.com/bz5XFwCMQX

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“Once California commingles the challenged ballots with lawful ones, there is no way to get the challenged ballots back,” Sauer wrote, according to CBS News. He described the request as a “modest remedy” meant to keep any ballots cast by noncitizens from diluting valid votes, CBS reported.

Two courts said no

The dispute began when the Justice Department sent California’s secretary of state and Los Angeles County’s top election official a list of about 20,000 people it said were registered to vote but are not U.S. citizens, and demanded that any ballots they returned be held back until their citizenship could be checked, CBS News reported. The department then sued the state and Los Angeles County Registrar-Recorder Dean Logan, according to CBS.

U.S. District Judge David Carter, a Clinton appointee, turned down the administration’s request for a temporary restraining order last Wednesday, CBS News reported. On Friday, a divided three-judge panel of the 9th Circuit Court of Appeals also refused, voting 2-1, according to CBS and The Hill.

NPR reported that the two judges in the majority, Trump appointee Mark Bennett and Biden appointee Gabriel Sanchez, wrote that granting the request carried “a material risk” of disenfranchising voters and could jeopardize the county’s election. They pointed to the long-standing principle that courts should not change election rules on the eve of an election, NPR reported.

Sauer pushed back on that warning. “That doomsday prediction ignores that segregating ballots is a routine remedy when the lawfulness of ballots is questioned,” he wrote, according to The Hill.

What happens next

The application goes first to Justice Elena Kagan, who handles emergency matters from the 9th Circuit, and she had not set a deadline for California to respond as of Monday, according to The Hill and the Los Angeles Times. Kagan can rule on her own or send the request to the full Court, The Hill reported.

State and county officials have questioned the accuracy of the federal list and warned that eligible voters could be wrongly shut out, CBS News reported. NPR reported that the number of ballots actually in dispute is likely well below 20,000, because county officials found many people on the list did not have active registrations and were never mailed ballots.

The stakes are large in a state where voting has been underway since early October. More than 6 million mail ballots had been returned statewide as of Sunday, out of more than 23 million registered voters, according to the California secretary of state’s office as cited by CBS News.

For conservatives who have pressed for proof-of-citizenship rules in federal elections, the case puts a simple question in front of the justices: whether ballots flagged by federal immigration records can be held aside until they are checked. Whether the Court acts before polls close Tuesday is still unknown, NPR noted.

Sources

• CBS News
• Los Angeles Times
• The Hill
• NPR

Reporting by Daily Beltway.