DOJ Requests Supreme Court Review of California Ballot Dispute

The Department of Justice has asked the U.S. Supreme Court to intervene in a legal dispute with California over the state's voter rolls, an appeal filed one day before Election Day. The department claims it has identified 20,000 likely noncitizens on the state's voter list whose ballots should not be counted until their citizenship is verified.

The conflict escalated rapidly in the week leading up to Tuesday's vote. In recent weeks, the DOJ sent subpoenas to California election officials and reminded them of potential criminal prosecution for allowing ineligible voters to cast ballots. On Friday, a divided panel of the 9th Circuit Court of Appeals rejected the DOJ's request to order California to stop processing those ballots. The court cited the Purcell principle, which discourages changing election rules on the eve of an election, and noted that the Constitution grants states authority to administer their elections.

Following the 9th Circuit's rejection, the DOJ filed a notice on Monday seeking injunctive relief from the Supreme Court. This is not the first time the department has challenged California's election administration. Last week, federal Judge David Carter, a Clinton appointee, described the situation as a broad, ongoing pattern of attempted election interference by federal officials. The 9th Circuit panel included Judges Mark Bennett and Gabriel Sanchez, who voted to reject the emergency request, and Judge Patrick Bumatay, who dissented.

Judges Bennett and Sanchez warned that granting the DOJ's request posed a material risk of disenfranchisement. They stated that creating a novel system to segregate ballots while voting was already underway was infeasible for Los Angeles County. The judges also pointed to the National Voter Registration Act, which bars states from systematically removing ineligible voters within 90 days of a federal election.

County election officials argue the federal government's list is unreliable. The actual number of ballots in dispute is likely smaller than the 20,000 cited by the DOJ because many individuals on the list did not have active voter registrations or receive mailed ballots. Data scientists at the University of California, Los Angeles, Voting Rights Project were granted access to the DOJ's list over the weekend through a court order in a separate lawsuit. Their analysis found that 42% of the names on the list do not appear on California's current voter roll and that naturalized citizens were included.

A federal judge in San Francisco issued a temporary restraining order late Friday, barring the administration from threatening or coercing election officials to stop processing ballots from registered voters. The federal government has appealed that order. The Supreme Court has not yet indicated whether it will agree to intervene or if it will issue a decision before Tuesday's Election Day.