The U.S. Department of Justice logo is displayed on a speaker’s podium. (Photo by Seth Tupper/South Dakota Searchlight)
The U.S. Department of Justice on Monday asked the U.S. Supreme Court to require California to set aside the ballots of suspected noncitizen voters in a last-ditch appeal by the Trump administration to exert control over the state’s vote counting.
The request came on the eve of Election Day and as more than 5 million mail ballots have already been cast in California, a state where voters are expected to elect dozens of Democrats to the U.S. House.
California’s election could be thrown into chaos if the Supreme Court grants the request. State and local election officials have previously warned that they have no easy way to quickly identify and set aside the ballots of individuals on the list.
In the Trump administration’s emergency application, U.S. Solicitor General D. John Sauer noted that federal law prohibits voting by noncitizens, who still do sometimes vote “despite that prohibition,” he wrote.
“Once California commingles the challenged ballots with lawful ones, there is no way to get the challenged ballots back,” Sauer added.
Logistically difficult
As a universal vote-by-mail state, every voter in California is sent a mail ballot. While millions of these ballots have already been returned, millions more may be dropped off on Tuesday or arrive by mail in the coming days.
Aman Bhullar, an assistant Los Angeles County registrar-recorder/county clerk, warned in a court declaration in October that the Trump administration’s request could wreak havoc on elections.
“The potential consequences of implementing DOJ’s demand are severe and range from halting all counting; halting in-person voters’ ability to cast votes; or otherwise interfering with the ability to accurately count votes,” Bhullar wrote.
Already a week ago, Shelby Wayment, staff attorney at the University of California, Los Angeles Safeguarding Democracy Project, questioned the feasibility of the DOJ’s demands. Ballots have already been mailed out and were being processed, she said.
“Just logistically, I don’t think it’s possible at this point,” Wayment said in a late October interview.
No widespread fraud
The Justice Department sued California in October, alleging that the U.S. Department of Homeland Security had identified 20,000 suspected noncitizen voters. California officials raised concerns about the veracity of the list, and declined to take action based on it.
An immigrant rights group, the Coalition for Humane Immigrant Rights, has raised serious concerns about the list after a judge forced the Trump administration to share a copy with the organization.
The group said in a court filing Saturday that an analysis by data experts found that 42% of the names weren’t found on California’s current voter file. At least 22 names on the list match names of U.S. citizens compiled by the organization, the analysis found.
“There is no widespread voter fraud. The federal government has no right to interfere in California’s elections,” California Attorney General Rob Bonta, a Democrat, said in a statement on Saturday.
11th hour challenge
The Justice Department has said the Department of Homeland Security compiled the list by checking a public copy of California’s voter file against federal records and information from the research service Lexis Nexis.
A district court judge and the 9th U.S. Circuit Court of Appeals have both ruled against the Trump administration in the case. State and local officials have argued the Justice Department exceeded its authority because states administer elections under the U.S. Constitution.
Even though the 9th Circuit issued a decision on Friday, the Justice Department didn’t ask the Supreme Court to intervene until midday Monday, less than 24 hours before Election Day.
The Justice Department has asked for an administrative stay that would require California to begin segregating ballots of voters on the list while the Trump administration prepares a full appeal. While it’s unknown how the Supreme Court will rule, in general the justices frown on federal courts ordering major last-minute changes to elections.
Because the case arises out of the 9th Circuit, Justice Elena Kagan, one of the court’s three liberals, will be the first to review the application.
Walter Olsen, a senior fellow at the Cato Institute’s Robert A. Levy Center for Constitutional Studies, in a statement predicted the Supreme Court will reject the request. He argued that the Justice Department is asking California officials to violate their own state laws.
“The Supreme Court should and I believe will reject the administration’s nervy last-minute attempts to meddle in California’s elections, as lower courts have rejected them,” Olsen said.