Trump Administration Files Emergency Appeal to Set Aside 20,000 California Ballots

Solicitor General D. John Sauer filed an emergency appeal with the Supreme Court on Monday, asking the justices to set aside ballots from approximately 20,000 California voters. The Trump administration contends these individuals may not be citizens and argues that their mail-in votes should be segregated from the general total pending further review. Sauer requested a limited injunction to stop California from mixing the suspected illegal ballots with legal ones while the United States completes its appeal to the 9th Circuit Court of Appeals.

The appeal was submitted one day before the midterm election. Sauer stated that the court should require California to identify and separate mail ballots from persons the federal government has flagged as likely non-citizens. He also asked for an administrative injunction to enforce this segregation while the Supreme Court considers the application. It is not yet clear if the justices will view the request as an emergency, as the case will first be reviewed by Justice Elena Kagan.

The administration has faced legal setbacks in lower courts. A federal judge in Los Angeles and two 9th Circuit panels in San Francisco previously ruled against the Trump lawyers. Those judges determined that the administration’s interpretation of the Constitution was incorrect and that the complaint arrived too late to impact the current election cycle. The 9th Circuit majority opinion, issued on Friday, noted that the Constitution grants states primary authority over the mechanics of congressional elections.

Judges Mark J. Bennett and Gabriel P. Sanchez wrote that if the United States believes different procedures are necessary for vote-by-mail ballots, it should propose changes to Congress rather than the courts. They cited a 2013 opinion by the late Justice Antonin Scalia, which held that the Elections Clause serves as a default provision investing states with responsibility for election mechanics. Scalia’s opinion in that case, which was joined by a 7-2 majority, rejected Arizona’s requirement for documentary proof of citizenship, relying instead on the National Voter Registration Act of 1993. That federal law allows voters to register by attesting under oath that they are citizens, a standard California also follows.

In the current dispute, Justice Department officials stated that they are only asking for ballots from the flagged voters to be set aside temporarily. They argued this is a quick process if the state cooperates and noted that California law allows ballots to be counted before Election Day. Once a ballot is cast in person or removed from its mail envelope, officials said, it cannot be resegregated from the vote total. The administration pointed out that federal law prohibits officials from systematically removing ineligible voters from lists within 90 days of an election.

The list of 20,000 voters was compiled using voter data purchased from California and information from commercial platforms. California Secretary of State Shirley Weber and Los Angeles County Registrar-Recorder/County Clerk Dean Logan questioned the reliability of this list. County officials and analysts with the UCLA Voting Rights Project stated that the list includes U.S. citizens and individuals who are not registered to vote. State attorneys argued that complying with federal demands while voting is underway would cause widespread disruption and disenfranchise legitimate voters.

Dissenting Judge Patrick J. Bumatay called the administration’s proposal a reasonable request and a modest remedy for the problem of illegal voting. He is a Trump appointee, as are the majority of the 9th Circuit judges who previously ruled against the administration in this case. The Department of Justice also highlighted that federal courts have repeatedly rejected efforts to wrest control over state voting processes. The state versus federal divide in election law remains central to the current legal battles.

As of Sunday, more than 6.4 million ballots had already been cast in California, according to Weber’s office. Those ballots are being counted in accordance with state law. In May, more than 23 million Californians were registered to vote, with the majority leaning toward Democrats. Last week, President Donald Trump claimed there are hundreds of thousands of bad ballots in California, stating his opinion that the number could be in the millions. Separately, Trump’s prosecutors brought fraud charges against 28 lawful immigrants in California last month, alleging they registered or voted despite not being citizens.