Trump Bid to Set Aside 20,000 California Ballots Fails

The Supreme Court rejected the Trump administration’s emergency bid to set aside 20,000 California mail ballots, refusing to let federal officials hold voters’ ballots before the midterm elections. The court issued a one-sentence order without explanation or noted dissents, and acted without asking California to respond.

California Attorney General Rob Bonta said the appeal “reeks of desperation and is another attempt to undermine our elections and trample on the rule of law.” State officials and immigration rights groups warned that the federal list could include thousands of U.S. citizens. Eligible voters risked being shut out.

Who gets to decide

The Justice Department asked the court to hold the ballots aside until officials could verify voters’ citizenship, relying on a list the Department of Homeland Security compiled. Solicitor General D. John Sauer argued that “the only way to preserve the district court's ability to grant relief to the United States after a full merits proceeding, therefore, is to segregate the challenged ballots now.” He said the step “would not cause any undue hardship to California.”

The administration called separation a modest measure that would allow officials to count lawful votes later. It also argued officials couldn’t identify and remove ballots once they mixed them with others. California officials said separating ballots after voting began in early October would be logistically impossible.

California mails a ballot to all of its roughly 23 million registered voters. Hundreds of thousands had already been processed or received ahead of Election Day. The administration pressed to isolate ballots based on a list whose reliability state officials and immigration rights groups challenged.

The cost of a suspect list

A federal district judge rejected the request the previous week, citing concerns about the data’s reliability. U.S. District Judge David O. Carter wrote, “If the Executive can discount votes and threaten an ongoing election due to unproven allegations, then our democracy is in danger.”

A 2-1 appeals court panel upheld his order. One judge appointed by Trump and another appointed by President Joe Biden, a Democrat, voted in favor. A third judge appointed by Trump dissented, arguing that California’s refusal to separate the ballots encouraged the “violation of federal law.”

At a separate hearing, Judge Trina Thompson questioned reported inaccuracies in the Justice Department’s data. She asked Justice Department attorney Kenneth Kao, “Would you agree there's a high error rate?” Kao replied, “That's a fair statement,” adding, “That's why we ask for the registrars' aid in verifying these are all valid voters.”

Bill Essayli, the federal prosecutor running the Justice Department’s Los Angeles office, said he was highly confident the people on the list weren’t entitled to vote. “This isn't speculation. This isn't a theory,” he said at a news conference, later acknowledging there might be errors. Studies and state audits show that ineligible voting, including voting by noncitizens, is rare.

A fight over election power

In a separate ruling Monday in Washington, Chief Judge James Boasberg found the administration’s last-minute demands of California election officials likely violated the Constitution’s Elections Clause, which assigns authority over election rules to states and Congress. Another district judge, Trina Thompson, had barred the administration from threatening to prosecute election workers who allowed potentially illegal voters to cast ballots.

The Supreme Court acted the day before the midterm elections, which will determine control of Congress for the final two years of Trump’s second term. The administration’s request followed a federal appeals court rejection on Friday and an earlier district court ruling; it had also unsuccessfully asked an appeals court to intervene early. In September, the Supreme Court rejected another Trump administration effort to restrict mail ballots nationwide. The proposed burden fell on voters whose eligibility the federal list hadn’t established.