US Supreme Court rejects Trump attempt to freeze California vote counting

The U.S. Supreme Court on Monday, mere hours before Election Day in the midterms that will determine control of Congress, denied the Trump administration’s final attempt to force California to set aside the ballots of 20,000 people it suspects are noncitizens.

The decision marked a significant blow to President Donald Trump’s bid to control voting in the country’s most populous state and capped a whirlwind three weeks of legal war between the U.S. Department of Justice and California’s state and local election officials. 

The Supreme Court’s denial also removed the possibility of a last-minute ruling that could have led to chaos if officials were forced to scramble to follow the Justice Department’s demands.

The court denied the Justice Department’s request late Monday afternoon in a one-sentence order. It noted no dissents, and offered no reasoning, as is often the case in decisions on emergency requests.

The Justice Department had demanded that election officials set aside the ballots of about 20,000 people on a list developed by the U.S. Department of Homeland Security. The DOJ told election officials the ballots shouldn’t be tabulated unless the citizenship of the individuals could be verified.

At the same time, Justice Department lawyers threatened election officials with prosecution if they counted the ballots. The Trump administration argued that the officials would be aiding and abetting noncitizen voting, a misdemeanor federal crime. Election officials in Los Angeles County received grand jury subpoenas.

“Today’s decision is another blow to the Trump administration’s manufactured election emergency and a major victory for local election officials and voters across the country,” Jonathan Miller, chief program officer of Public Rights Project, which represented Los Angeles County, said in a statement.

States and federal government

The dispute pitted the Trump administration’s claims of executive authority against California’s power to run its own elections. 

The U.S. Constitution assigns states the responsibility of administering elections, though Congress can override state rules. The president — and by extension the officials under him — have no unilateral power over how states run their elections.

The Justice Department on Monday morning asked for an administrative stay that would have required California to begin segregating ballots of voters on the list while the Trump administration prepares a full appeal. The Supreme Court denied the DOJ’s request without seeking briefing from California and the other parties in the case.

Steve Vladeck, a professor at Georgetown University Law Center and a leading expert on the Supreme Court, wrote on social media that he couldn’t remember any case in which the court denied a Justice Department application without calling for a response.

“That’s an even bigger ‘go away’ than the lack of (public) dissents,” Vladeck wrote.

The DOJ didn’t immediately respond to a request for comment on the decision.

Avoids major fallout

Election officials warned of grave consequences if they were ordered to separate the ballots. Aman Bhullar, an assistant Los Angeles County registrar-recorder/county clerk, wrote in a court declaration in October that the potential fallout included halting ballot counting and in-person voting.

The Supreme Court generally shies away from ordering major last-minute changes to elections. While the justices have shown greater deference to states that alter their elections, they often counsel federal courts against significant 11th-hour interventions — a doctrine that’s become known as the Purcell principle.

But the Trump administration had argued that because noncitizen voting is illegal under federal law, any ballot cast by a noncitizen is unlawful. 

“It also follows that a State may not count such an invalid ballot,” U.S. Solicitor General D. John Sauer wrote in his request.

Stephen Richer, a legal fellow with the Cato Institute’s Robert A. Levy Center for Constitutional Studies, noted in a statement that every California voter attests to their citizenship under penalty of perjury — the same requirement in federal law.

“The federal government has suspicions — not proof — that certain voters are not citizens,” Richer wrote. “California law provides a process for challenging those voters. The federal government cannot invent its own at this late hour.”

List questioned

The accuracy of the list also came under intense criticism from California election officials and voting rights advocates. 

An immigrant rights group, the Coalition for Humane Immigrant Rights, 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 DHS list match names of U.S. citizens compiled by the organization, the analysis found.

The Justice Department said Homeland Security used a public copy of California’s voter roll to develop the list. DHS checked the list against federal records and used the Lexis Nexis research service to analyze voter information, the Trump administration said in court filings.

The DOJ repeatedly argued that once a ballot is processed, it becomes impossible to identify whether a noncitizen cast it. Yet the department didn’t ask the Supreme Court to intervene until Monday morning, days after the 9th U.S. Circuit Court of Appeals ruled against the set-aside request on Friday.

When Sauer did file a request with the Supreme Court, he wrote that his office had been “informed” that the Trump administration identified more than 20,000 individuals “who appear to be registered as voters in California at the time the voter-roll information was received and whom the United States believes are likely to be aliens.”

Sauer’s arguments were undercut by remarks made by a Justice Department lawyer hours later. 

During a court hearing in California on Monday over the Trump administration’s threats against election officials, Kenneth Kao, an assistant U.S. attorney, acknowledged the list contains significant errors.

“Would you agree there’s a high error rate — not nominal — but a high error rate,” Judge Trina Thompson, an appointee of President Joe Biden in U.S. District Court for the Northern District of California, asked.

“I think that’s a fair statement,” Kao replied.