Trump Administration Asks Supreme Court to Make California Set Aside 20,000 Mail Ballots

The filing. On Monday, Nov. 2, the day before Election Day, Solicitor General D. John Sauer asked the Supreme Court to step into the Justice Department's fight with California over mail ballots. The case is United States v. State of California, et al., No. 26A__ (number not yet assigned) (application). The 22-page filing asks for two things:

1. an injunction pending appeal that "requires California to segregate mail ballots from persons whom the United States has identified as likely noncitizens," lasting through DOJ's appeal in the Ninth Circuit and "any subsequent proceedings in this Court"; and
2. an administrative injunction "to that effect while it considers this application," meaning an immediate, short-term order while the justices decide.

The respondents are the State of California, Secretary of State Shirley Weber and Los Angeles County Registrar Dean Logan, plus the voting-rights and civil-rights groups that joined the case, including LULAC and the NAACP.

What DOJ says the list is. The application says the government "has identified more than 20,000 individuals who appear to be registered to vote in California based on publicly available information at the time that information was received, but who, in the United States' view, are likely not U.S. citizens." It describes how: U.S. Citizenship and Immigration Services ran a publicly accessible version of California's voter roll through Accurint, a commercial data platform that can link a name and address to a Social Security number, birth date and phone number; USCIS investigators then reviewed the remaining names by hand; and Homeland Security Investigations did a further review. The government gave the list to the Secretary of State and Los Angeles County in mid-October and sued on Oct. 15 when they declined to set the ballots aside.

DOJ stresses it is asking that ballots be held, "not to cancel" them. It points to California's own rules, which say "challenged ballot[s] shall be set aside" and resolved "in a segregated area." It argues that once the ballots are mixed in, "there is no way to get the challenged ballots back," and that the harm "will continue to mount through Tuesday, November 10," California's deadline for receiving mail ballots postmarked by Election Day. The application does not ask the Court to rule by a specific date.

Who decides first. Emergency requests from the Ninth Circuit go to Justice Kagan. She can act alone, ask California to respond, or refer the request to the full Court. As of our check, she had not set a response deadline (The Hill; CNBC).

Two courts have said no. On Oct. 28, U.S. District Judge David O. Carter in Los Angeles denied DOJ's request (order, Dkt. 149; docket, No. 2:26-cv-12025). The application summarizes his reasons: DOJ lacks standing and a right to sue, is unlikely to win its argument that federal law overrides California's procedures, and is asking for relief that would likely violate other federal election laws, and the balance of harms weighs against it. Carter wrote, "Never before in American history has the federal government, on the eve of an election, sought to coerce a state and local government to abandon their own Constitutional elections procedures."

On Oct. 30, a Ninth Circuit panel voted 2-1 to deny DOJ's emergency motion (order, No. 26-7231). Judges Mark Bennett and Gabriel Sanchez assumed DOJ could sue but found it unlikely to win. They wrote that "there is no feasible way to identify and segregate the ballots of specific individuals without potentially catastrophic effects on the entire system," and they agreed with Carter's finding that DOJ's process for building the list "was not credible." Judge Patrick Bumatay dissented. Four days earlier, the same panel had dismissed DOJ's first appeal because Carter had not yet ruled (No. 26-7070).

DOJ's legal argument. The application makes four main points. Federal law, 18 U.S.C. 611, makes it "unlawful for any alien to vote" in federal elections, so a state may not count those ballots, and the Constitution's Supremacy Clause means California's attestation-based procedures can't override that. The United States has standing to enforce its own laws. Setting ballots aside isn't the same as removing voters, so the National Voter Registration Act's 90-day quiet period doesn't apply. And the Purcell principle, which warns federal courts against changing election rules close to an election, is about the rules for casting votes, not "what happens after votes are cast." It leans on Justice Samuel Alito's 2020 order in a Pennsylvania case that late-arriving mail ballots be kept separate.

Still ahead in the trial court. Carter's case continues. He has appointed a technical special master and set an expedited Nov. 13 hearing at which witnesses are to testify on "the reliability of the October List and the methodology Plaintiff used to produce it" (Dkt. 159). Separately, a federal judge in San Francisco has temporarily barred DOJ and Homeland Security from threatening election workers over flagged ballots through Nov. 16.