WASHINGTON — The Justice Department asked the Supreme Court on Monday to order California to set aside mail ballots cast by anyone on a list of more than 20,000 registered voters who federal officials allege are likely noncitizens, Reuters reported.
The department filed the emergency request one day before the Nov. 3 midterm elections, which will decide control of Congress. It wants the disputed ballots separated from other ballots and not counted until each voter’s citizenship has been verified.
The Justice Department also asked the justices to act quickly, by ordering the ballots set aside on an interim basis while the court formally decides the request.
“Once California commingles the challenged ballots with lawful ones, there is no way to get the challenged ballots back,” the department wrote in its filing.
The Department of Homeland Security put together the list of 20,000 voters and sent it to California officials and to Los Angeles County officials, Reuters reported.
The Justice Department sued in federal court on Oct. 15. It says California is unlawfully blocking its enforcement of a 1996 law that makes it a criminal offense for noncitizens to vote in federal elections, and that the state’s action violates the Constitution’s Supremacy Clause.
California says its safeguards against noncitizen voting are robust. In court papers, the state said the lawsuit threatens to deprive 20,000 people of their right to vote based on vague accusations, and that the administration’s process for checking voter lists is flawed and likely rife with errors.
County election officials have also said the number of ballots actually in dispute is likely much smaller than 20,000. Many people on the list did not have active registrations and were not mailed ballots, according to NPR.
U.S. District Judge David Carter in Los Angeles denied the administration’s request on Oct. 28.
“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 and bend to the will of the executive branch,”
Carter also questioned the reliability of the administration’s data. He noted that people flagged by the federal government as noncitizens on voter rolls in other states have repeatedly turned out to be naturalized U.S. citizens.
The San Francisco-based 9th U.S. Circuit Court of Appeals refused the request on Friday, in a 2-1 decision. The court pointed to the state’s power over election procedures and to California’s “comprehensive statutory scheme to ensure the integrity of its elections,” including a system for canceling registrations when a voter is shown to be ineligible.
Siding with the administration could lead to disenfranchisement “and could jeopardize the county’s entire election,” the 9th Circuit said. Circuit Judge Patrick Bumatay dissented, calling the government’s request reasonable.
The request reaches the Supreme Court after a series of election fights brought by the administration. The Justice Department has told election officials in all 50 states that they could face criminal prosecution if they knowingly allow noncitizens to stay on the rolls or cast ballots, and it has lost a series of lawsuits seeking voter rolls from dozens of states, Reuters reported.
A Reuters investigation published in July found just 129 cases in which noncitizens had been charged with voting illegally since the 1996 law was passed. Many appeared to stem from voter confusion or administrative errors rather than intentional fraud, Reuters reported.
California holds 52 seats in the House of Representatives, more than any other state. Democrats need a net gain of four House seats to win a majority in the chamber.
It is not yet known whether the Supreme Court will intervene, or whether it will rule before Election Day.
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