Justice Department Plans Supreme Court Appeal in California Ballot Dispute

The Justice Department said Monday, Nov. 2, that it plans to appeal to the U.S. Supreme Court in its dispute with California over voter rolls. The notice came one day before Election Day, Nov. 3, and after a federal appeals court refused the department's emergency request to order California to set aside ballots.

The request asked the court to stop California from counting the mail ballots of people the department believes are noncitizens. A federal district judge had earlier turned down a similar request covering the ballots of thousands of people. The department's request then moved to the 9th Circuit, a federal appeals court. NPR reported that a divided three-judge panel rejected the request.

Two members of the panel, Judges Mark J. Bennett and Gabriel P. Sanchez, formed the majority. Bennett was appointed by President Donald Trump, and Sanchez was appointed by President Joe Biden. Judge Patrick J. Bumatay, also a Trump appointee, dissented.

The majority cited two rules. The first is the National Voter Registration Act, a federal law that bars states from systematically removing ineligible voters within 90 days of a federal election. The second is the Purcell principle, which holds that election rules should not be changed on the eve of an election. The majority wrote that there was a material risk the requested relief would take away people's right to vote, and could jeopardize Los Angeles County's entire election.

The Justice Department says it identified 20,000 "likely" noncitizens on California's voter roll, the official list of registered voters. It says their ballots should not be counted until citizenship can be verified. The department's complaint alleges that California is facilitating unlawful voting by knowingly allowing noncitizens to vote, according to a Justice Department release.

Election officials in the counties found that many people on the federal list did not have active voter registrations and were not mailed ballots. NPR reported that the number of ballots actually in dispute is likely much smaller than 20,000. The Associated Press reported on Oct. 31 that more than 4 in 10 names flagged as possible noncitizen voters could not be found on the state's voter records.

Justice Department officials have warned local election officials that they could be criminally prosecuted if they do not cooperate with federal demands to keep the ballots separate. In the week before Nov. 2, the department also sent grand jury subpoenas, legal orders issued by a grand jury, which hears evidence in criminal cases, to employees of the Los Angeles County Registrar-Recorder's office. The office runs elections in the county.