The Trump administration on Monday morning asked the Supreme Court to intervene in its efforts to keep California from counting ballots cast by what it contends are more than 20,000 noncitizens who have registered to vote in that state. In a 19-page filing, U.S. Solicitor General D. John Sauer requested an order from the justices that would require California to keep those ballots separate until the voters’ citizenship could be verified. “Once California commingles the challenged ballots with lawful ones,” Sauer wrote, “there is no way to get the challenged ballots back.”
The filing is the latest chapter in the Trump administration’s push to combat alleged voter fraud. It began last month, when the administration went to federal court in Los Angeles, seeking an order directing the state not to send ballots to, or count the ballots of, voters who were likely not citizens.
On Oct. 28, U.S. District Judge David Carter turned down the government’s request for a temporary order directing California to sequester the ballots of “likely noncitizens.” Among other things, he questioned the credibility of the Trump administration’s allegations that the voters it had identified were not U.S. citizens. On Friday, the U.S. Court of Appeals for the 9th Circuit also rejected the Trump administration’s motion for emergency relief.
With the midterm elections now just one day away, the Trump administration sought relief next in the Supreme Court. Sauer argued that the government is likely to prevail on the merits of its claim – a key factor that courts consider in deciding whether to grant temporary relief – because federal law bars anyone who is not a U.S. citizen from voting in federal elections. Therefore, he wrote, “it follows that any ballot cast by an alien is unlawful” and states cannot count them.
The United States will also suffer permanent harm (another factor that courts consider in deciding whether to award temporary relief), Sauer continued, because “‘California admits that there is no way to trace a ballot after it is processed.’” The government’s “injury will continue to mount,” Sauer contended, “through Tuesday, November 10 (a week after election day, California’s deadline for receiving mail ballots.)”
By contrast, Sauer said, California will not suffer “undue hardship” from having to sequester the ballots at issue in this case. Indeed, he suggested, “California’s own election laws contemplate the segregation of challenged ballots, and the segregation of challenged ballots is a standard remedy in election cases.”
Sauer asked the court to also issue an immediate temporary order, known as an administrative injunction, “that requires California to segregate mail ballots from persons whom the United States has identified as likely noncitizens” while the justices consider the government’s request.
The Trump administration’s filing goes first to Justice Elena Kagan, who has primary responsibility for emergency appeals from the 9th Circuit. Kagan could act on it herself or (as is more likely) refer it to the full court.
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[ H/T SCOTUSblog ]
