The federal government asked the Supreme Court on Monday to temporarily block California election officials from counting mail-in ballots cast by approximately 20,000 voters whom the Department of Justice suggests may not be U.S. citizens.
The emergency petition reached the high court just one day before Election Day, following a rapid series of lower-court defeats for the administration. The Justice Department moved to the Supreme Court three days after the 9th U.S. Circuit Court of Appeals declined to overturn a federal district judge’s ruling that permitted the disputed ballots to be tabulated.
In the application submitted to the justices, Solicitor General D. John Sauer argued that the government had identified more than 20,000 individuals registered to vote in California based on publicly available information at the time. According to Sauer, the United States views these individuals as likely non-citizens, who are barred by law from participating in federal elections.
“The United States is likely to succeed on the merits of its appeal,” Sauer wrote, adding that the federal government suffers a judicially cognizable injury to its sovereignty from violations of its laws. He cautioned that once California commingles the challenged ballots with lawful ones, retrieving or separating them would become impossible.
The underlying legal battle began on October 15, when the Justice Department filed a lawsuit in U.S. District Court in Los Angeles. The initial complaint aimed to stop state officials from tabulating mail-in ballots from suspected non-citizens until their citizenship status could be formally verified. Prior to the filing, the department had provided Los Angeles County officials with a thumb drive containing names compiled by the Department of Homeland Security.
Last Wednesday, U.S. District Judge David Carter firmly rejected the government’s request to segregate and withhold those ballots.
“This case is about the right of every American citizen to vote in a free and fair election,” Judge Carter wrote in his ruling. “Never before in American history has the federal government, on the eve of an election, sought to coerce a state and local government to abandon their own Constitutional elections procedures and bend to the will of the Executive Branch.”
Judge Carter emphasized the dual sovereignty of the state, writing that while the executive branch claimed sole authority, “California and its people are sovereign, too.”
Following that setback, the Justice Department appealed to the 9th Circuit. A three-judge panel divided 2-1 on Friday to deny the emergency appeal. The majority opinion, written by Circuit Judges Mark Bennett and Gabriel Sanchez—appointed by President Donald Trump and former President Joe Biden, respectively—warned that altering election procedures at such a late stage carried severe consequences.
“There is a material risk that granting the United States its requested relief would result in disenfranchisement,” the judges stated in the majority ruling.
The Supreme Court holds no statutory deadline to act on the administration’s emergency petition and could rule at any time as nationwide voting proceeds.
