DOJ Asks Supreme Court to Let It Segregate 20,000 California Ballots

The Justice Department on Monday asked the U.S. Supreme Court to step into its dispute with California over about 20,000 mail ballots the department says were cast by people who are probably not citizens, NPR and Fox News reported.

The department wants the justices to pause lower-court rulings that refused to order California to set the ballots aside while their eligibility is investigated. In its filing, the department argued that once such ballots are counted and mixed with lawful ones, the harm cannot be undone, according to Fox News. It described the request as a limited injunction that would preserve the ballots without canceling any votes.

A federal judge in Los Angeles, David Carter, denied the request last week. A split three-judge panel of the Ninth Circuit turned it down Friday. Judges Mark Bennett, appointed by Trump, and Gabriel Sanchez, appointed by President Joe Biden, wrote that granting the request carried “a material risk” of disenfranchising voters and could jeopardize the county’s entire election, NPR reported. They cited the Purcell principle, under which courts avoid changing election rules close to a vote, along with states’ constitutional authority over elections and the National Voter Registration Act’s bar on systematic purges close to a federal contest. The third judge on the panel, Patrick Bumatay, named to the bench by Trump as well, disagreed.

California and Los Angeles County say the federal list is unreliable. Over the weekend, data scientists at the UCLA Voting Rights Project gained access to the list through a court order in a separate lawsuit and found that 42 percent of the names do not appear on the state’s current voter roll, NPR reported. The analysis also found naturalized citizens among those named. Fox News reported that California describes its protections against noncitizen voting as robust.

The federal government’s position is that it has a duty to keep ineligible votes from being commingled with valid ones. The courts that have ruled so far have found that a new segregation process, set up while voting is already under way, would be impractical and risky.

NPR reported that it is unclear whether the Supreme Court will take up the matter or act before Tuesday. The filing is the latest step in a wider clash between the department and California officials. In recent weeks the department has issued subpoenas to election officials and warned that they could face prosecution for allowing ineligible people to vote. A federal judge in San Francisco late Friday issued a temporary restraining order barring the administration from threatening or coercing officials over the ballots; the government has appealed that order.