DOJ Seeks Emergency Supreme Court Order on California Ballots

Voters in California face a legal battle over their ballots as the Department of Justice asked the U.S. Supreme Court to intervene in a dispute with state election officials. The request was filed on Monday, one day before Election Day. If the justices agree to hear the case, they may decide whether thousands of specific ballots should be paused or counted.

The Department of Justice identified 20,000 individuals on California’s voter roll as likely noncitizens. The agency argues that these ballots should be set aside until citizenship is verified. Lower courts have previously rejected this request, favoring the position of California and Los Angeles County election officials. They determined that the federal list was unreliable and that creating a new system to segregate ballots was not feasible while voting was already underway.

A divided panel of the 9th Circuit Court of Appeals issued a decision on Friday rejecting the emergency request. Judges Mark Bennett and Gabriel Sanchez wrote that there is a material risk that granting the relief would result in disenfranchisement. They cited the Purcell principle, which suggests election rules should not change on the eve of an election, and the National Voter Registration Act. That law prevents states from systematically removing ineligible voters within 90 days of a federal election. Judge Patrick Bumatay dissented from the decision.

Data suggests the number of affected ballots is lower than the federal government claims. Los Angeles County officials found that many people on the DOJ list did not have active registrations and were not mailed ballots. Additionally, data scientists at the University of California Los Angeles’ Voting Rights Project analyzed the list after gaining access through a court order. They found that 42 percent of the names did not appear on California’s current voter roll. Their analysis also identified naturalized citizens on the list.

The appeal follows a period of heightened tension between the federal government and California election officials. In recent weeks, the DOJ sent subpoenas to officials and warned them of potential criminal prosecution for allowing ineligible voters to cast ballots. A federal judge in San Francisco issued a temporary restraining order late Friday. That order bars the Trump administration from threatening or coercing officials to stop processing ballots. The federal government has appealed that ruling as well.