Trump lawyers seek Supreme Court order to pause counting of 20,000 California ballots

With the midterm election scheduled for Tuesday, the Trump administration is asking the U.S. Supreme Court to intervene in California’s vote-counting process. Solicitor General D. John Sauer filed an emergency appeal on Monday, requesting a limited injunction to stop California from commingling specific mail ballots with the rest of the total. The goal is to set aside votes from approximately 20,000 individuals whom federal officials have identified as likely non-citizens. Sauer wrote that the Court should direct California to segregate these ballots pending a final review of the administration’s appeal to the 9th Circuit.

The request lands on the desk of Justice Elena Kagan, who will decide whether to treat the matter as urgent. If she requests a response from California, the process could take several days. This legal battle follows lower court rulings that favored the state. A federal judge in Los Angeles and the 9th Circuit Court of Appeals in San Francisco have both rejected the administration’s claims. The appellate court ruled on Friday that the government was wrong on constitutional grounds and that the complaint arrived too late to affect the current election.

California Secretary of State Shirley Weber’s office reported that more than 6.4 million ballots were cast as of Sunday. Under state law, these votes are already being counted. Weber and Los Angeles County Registrar-Recorder/County Clerk Dean Logan received a 48-hour deadline from Justice Department officials in mid-October to begin cooperating with federal authorities. They, along with voter advocacy groups and analysts from the UCLA Voting Rights Project, have questioned the accuracy of the federal list. County officials note that the data, compiled from purchased voter records and commercial platforms, includes U.S. citizens and unregistered residents.

State attorneys argue that complying with the federal demand now would cause widespread disruption. They contend that the list is unreliable and would disenfranchise legitimate voters. Federal officials counter that they only want the flagged ballots held while citizenship is verified, a process they say is quick if the state cooperates. They emphasize that California law allows ballots to be counted before Election Day, and once a ballot is removed from its envelope, it cannot be separated from the total without a court order.

The dispute highlights a tension between state and federal authority over elections. The Constitution grants states the power to prescribe the times, places, and manner of congressional elections, unless Congress acts to change those rules. The 9th Circuit majority, including Judges Mark J. Bennett and Gabriel P. Sanchez, cited a 2013 opinion by the late Justice Antonin Scalia. They noted that the National Voter Registration Act of 1993 allows voters to register by attesting to citizenship under oath, which California follows. The judges suggested the federal government should propose changes to Congress rather than the courts. Dissenting Judge Patrick J. Bumatay called the request a reasonable and modest remedy.

Last month, federal prosecutors charged 28 lawful immigrants in California with fraud for allegedly voting while non-citizens. In November 2020, Justice Samuel A. Alito ordered Pennsylvania to set aside late-arriving mail ballots. However, that situation involved a state rule change during a pandemic, whereas the current California dispute involves a federal attempt to alter established state procedures late in the cycle.