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The Justice Department asked the Supreme Court to intervene on Monday in its fight over California’s voter rolls, seeking an emergency order separating mail ballots associated with more than 20,000 suspected noncitizens one day before Election Day.
Solicitor General D. John Sauer asked the justices to order California to set those ballots aside immediately while the court weighs whether to keep them separate during the government’s appeal. The request follows defeats before a federal district judge and a divided appeals court.
Sauer argued that once challenged ballots are removed from their identifying envelopes and mixed with other votes, any unlawfully cast ballots cannot be traced and removed. Its application describes the individuals as people who appear to be registered California voters and who, in the government’s view, are “likely not U.S. citizens.” The DOJ is seeking to segregate their ballots while eligibility disputes are resolved.
The 9th U.S. Circuit Court of Appeals rejected the request last Friday in a 2-1 decision following U.S. District Judge David Carter’s denial two days earlier.
Matters from the 9th Circuit are handled by Justice Elena Kagan, who could respond to the request solitarily or, more likely, could refer the matter to the full court for consideration.
The appeals court majority questioned the DOJ’s legal authority and evidence, warning that intervention could disenfranchise eligible voters and jeopardize tabulation. It also invoked Supreme Court precedent cautioning against changing election rules shortly before voting concludes.
Dissenting Judge Patrick Bumatay, a Trump appointee who said he would’ve sided with the administration, argued that separating ballots would preserve the opportunity to investigate eligibility without canceling any votes.
The DOJ’s application similarly contends that segregation would preserve the opportunity for potential relief and would follow procedures California already uses for challenged ballots.
U.S. First Assistant Attorney Bill Essayli publicly defended the government’s data against challenges from immigrant rights advocates voicing skepticism about its efficacy.
“Everyone on the list is a confirmed noncitizen,” Essayli wrote on social media over the weekend in response to a reporter, while acknowledging that investigators still needed to establish whether those individuals were in fact registered to vote in California’s state elections. “We suspect they are all registered California voters based on the redacted voter list we obtained, requiring our own investigation to positively identify them.”
Responding Saturday to an Associated Press post on X that claimed more than four in 10 flagged names could not be found on voter rolls, Essayli dismissed the underlying report and said official immigration records supported investigators’ findings.
“It’s remarkable that the media accepts whatever these people say as gospel yet won’t report on the sworn declarations we filed in evidence confirming more than 20,000 noncitizens are suspected to be on California’s voter rolls based on official USCIS records, Essayli wrote.
Essayli also asserted that a Los Angeles County review of 200 names validated the list and argued that California could resolve the dispute by providing unredacted voter records, which it has so far refused to do.
APPEALS COURT REJECTS DOJ EFFORT TO SET ASIDE 20,000 MAIL-IN BALLOTS, TEEING UP SUPREME COURT GAMBIT
California disputes the list’s reliability. The application acknowledges that both registration and citizenship remain contested.
The request places the dispute before the justices as California continues processing ballots ahead of Tuesday’s midterm elections.
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[ H/T Washington Examiner ]
