WASHINGTON — On the eve of the midterm election, Trump administration lawyers filed an emergency appeal with the Supreme Court asking justices to intervene and set aside mail-in ballots from approximately 20,000 California voters who federal officials suspect may not be U.S. citizens.
Solicitor General D. John Sauer submitted the application on Monday, urging the high court to direct California election officials to stop mixing potentially suspect ballots with legally cast votes. The administration wants mail-in ballots from individuals flagged by the federal government as likely non-citizens segregated while a broader appeal moves through the 9th U.S. Circuit Court of Appeals.
The emergency request went first to Justice Elena Kagan, who could ask for a response from California officials. Prior to the Supreme Court filing, the administration suffered defeats before a federal district judge in Los Angeles and twice at the 9th Circuit Court of Appeals in San Francisco. Lower court judges ruled that the administration’s legal arguments were flawed and that its challenge arrived far too late in the election cycle.
In mid-October, the administration filed a lawsuit demanding that federal courts force California and Los Angeles County to segregate ballots from voters flagged as potential non-citizens. Federal law prohibits the systematic removal of ineligible voters from official registration lists within 90 days of an election, and the Supreme Court has repeatedly expressed disapproval of late-breaking, court-ordered election rule changes.
The unfolding dispute highlights the enduring constitutional tension between state and federal authority in American elections. While federal statutes represent supreme law and federal prosecutors possess the power to bring criminal fraud charges against non-citizens who register and vote illegally, the U.S. Constitution explicitly grants states the authority to dictate the times, places, and manner of holding elections for senators and representatives, barring congressional alteration.
A three-judge panel of the 9th Circuit reinforced this division in a recent opinion, with Judges Mark J. Bennett and Gabriel P. Sanchez writing that if the federal government believes distinct procedures are required for vote-by-mail ballots, it should take those proposals to Congress rather than the courts. Dissenting Judge Patrick J. Bumatay characterized the administration’s request to separate the 20,000 ballots as a modest and reasonable remedy.
The majority decision relied on a 2013 Supreme Court opinion written by the late Justice Antonin Scalia, who held that the Elections Clause functions as a default provision that vests states with responsibility for the mechanics of congressional elections unless Congress adopts a different rule. In that 7-2 ruling, the court rejected an Arizona law requiring documentary proof of citizenship for voter registration, finding that the federal National Voter Registration Act of 1993 permitted citizens to register by attesting under oath on a standard form. California utilizes the same standard under state law.
Conservative Justices Clarence Thomas and Samuel A. Alito dissented in that 2013 case, arguing that states maintain exclusive authority to set voter qualifications. Alito previously intervened in Pennsylvania during the 2020 presidential election to order the segregation of late-arriving mail ballots amid pandemic-related rule changes, though those votes ultimately proved inconsequential to the outcome. Legal analysts note that the California dispute differs because the state has made no procedural changes, whereas the federal administration is the party seeking a late alteration to established voting rules.
