DOJ Asks Supreme Court to Let It Set Aside 20,000 California Ballots

The Justice Department went to the Supreme Court on Monday, asking justices to override lower courts and allow California to segregate more than 20,000 mail-in ballots cast by voters the government says are likely not U.S. citizens.

DOJ lawyers stress that the request would not cancel a single vote. Segregating the ballots would simply hold them aside while eligibility is investigated. In its filing, the department argued: "Once illegally cast ballots are counted and commingled with lawful votes, the resulting harm is impossible to remedy."

The 9th U.S. Circuit Court of Appeals turned the request down on Friday, with Judge Patrick Bumatay dissenting. A federal judge in Los Angeles had already denied it the week before. The lower courts pointed to the state's authority over election procedures and warned that granting the request could jeopardize the election.

California says its safeguards against noncitizen voting are robust, and argues the federal list may contain errors that could disenfranchise eligible voters. That is a claim a court can test; the department's position is that it cannot be tested after the ballots are mixed in.

The fight traces to a DOJ lawsuit filed October 15 alleging California is impeding enforcement of the federal ban on noncitizens voting in federal elections. The administration contends the state violated the Supremacy Clause. With Election Day tomorrow, the Supreme Court's answer, or its silence, will arrive almost immediately.