Trump takes fight over 20,000 California mail-in ballots to Supreme Court day before election

The Trump administration made a last-ditch plea to the Supreme Court on Monday, asking the justices to force California to set aside 20,000 mail-in ballots it claims were sent to noncitizens, just one day before the midterm elections.

“Once California commingles the challenged ballots with lawful ones, there is no way to get the challenged ballots back,” Solicitor General D. John Sauer wrote. “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 called the request a “modest remedy.”

Sauer argued that separating the ballots wouldn’t toss out a single vote. Instead, he said, it would buy officials time to confirm whether the voters on the list are actually eligible.

California Attorney General Rob Bonta, whose office is defending the state in the case, blasted the filing.

“The Trump Administration lost three times in court last week and those victories give us strong reason to believe we’ll prevail again,” Bonta said in a statement to the California Post. “This latest move reeks of desperation and is another attempt to undermine our elections and trample on the rule of law.”

Bonta said his office would be ready to “defend the fundamental right to vote and push back against this lawlessness” if the Supreme Court asks California for a response.

He also urged voters not to sit on their ballots.

“Election Day is tomorrow, but don’t wait until then to vote,” Bonta said. “If you haven’t cast your ballot yet, make a plan to do so as soon as possible. We’ll keep handling the legal fight in court.”

The emergency application comes after a divided Ninth Circuit panel rejected the Justice Department’s bid to impound the ballots.

In Friday’s ruling, the panel found the administration had overstepped by meddling in California’s power to set its own election rules. It also pointed to the long-standing Supreme Court principle that federal courts shouldn’t change how ballots are counted when an election is this close.

Earlier last week, the same panel had rejected the DOJ’s attempt to leapfrog the trial judge. Judge Patrick Bumatay, a Trump appointee, dissented, warning that “once those ballots are processed, it would be impossible to identify them.”

The emergency application now goes to Obama-appointed Justice Elena Kagan, who handles emergency matters from California.

The case forces the high court to weigh how far Washington can go in ordering states to change their vote-counting procedures at the eleventh hour.

The Constitution leaves the running of elections to the states. The Justice Department argues it has authority under a federal law that bars noncitizens from voting.

Legal experts have been doubtful about the administration’s case. The timing of the filing, one day before the election, could push any ruling past Election Day.

The DOJ has insisted it isn’t asking for much.

“We’re not asking California to take any drastic steps other than to sequester the ballots from the suspected noncitizens,” First Assistant US Attorney Bill Essayli said last month. “We believe it’s at a minimum of 20,000. That’s the floor.”

“Every minute that goes by, American citizen votes are being diluted in the state of California,” Essayli added. “It’s an emergency, and we expect the courts to treat it as such.”

The DOJ sent its list of 20,000 names to Los Angeles County election officials in October. County officials said only 7,035 of the names had LA County addresses, and some people on the list were confirmed to be U.S.-born citizens.

Officials have offered few details about how the list was put together. California officials say it is riddled with errors.

US District Judge David O. Carter sided with the state last week.

He warned that granting the request “would wreak havoc and disrupt the election that is already underway, create a chilling effect on election workers and voters alike, and discount the votes of United States citizens.”

“Eroded trust in our democracy is irreparable,” Carter wrote. “Once a vote is segregated, lasting harm has occurred.”

The court fight is part of a wider push by the administration to argue that illegal votes by noncitizens could taint the midterms, even though there is little evidence of widespread voter fraud.

Federal prosecutors have charged 28 people with violating federal election laws. Additional people are to be charged this week.

At least three employees of the LA County Registrar-Recorder’s office have also been subpoenaed. They have been ordered to appear at the federal courthouse in Santa Ana on Nov. 4, the morning after the election.

LA County Registrar Dean Logan has accused the DOJ of taking “a confrontational, adversarial approach” at every step.

President Trump weighed in last week while campaigning in South Carolina. “California is very corrupt,” he told reporters. “The judge should not have done that, but we’ll appeal that, of course.”

Carter has scheduled another hearing for Nov. 13. California’s deadline to certify election results is Dec. 3.

In California, polls close at 8:00 p.m. pacific time on Nov. 3.

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