The U.S. Supreme Court in Washington, D.C., on Oct. 14.
Saul Loeb/AFP via Getty Images
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Saul Loeb/AFP via Getty Images
A day before Election Day, the Department of Justice is asking the U.S. Supreme Court to wade into its unprecedented feud with California over the state’s voter rolls.
The appeal is the department’s latest foray into state election administration, which a federal judge referred to last week as “a broad, ongoing pattern of attempted election interference by federal officials.”
After that judge, David Carter, a Clinton appointee, and a divided 9th Circuit Court of Appeals panel rejected the DOJ’s request to order California to set aside and stop processing the ballots of thousands of people, the DOJ filed a notice Monday that it is seeking injunctive relief from the high court.
It remains to be seen whether the Supreme Court will agree to intervene and, if so, whether it would weigh in before Tuesday’s Election Day.
The DOJ says it has identified 20,000 “likely” noncitizens on California’s voter roll whose ballots should not be counted until their citizenship can be verified.
Courts so far have sided with California and Los Angeles County’s arguments that the federal government’s list is unreliable, and that creating a novel system to segregate ballots while voting is already underway is infeasible.
“[T]here is a material risk that granting the United States its requested relief would result in disenfranchisement and could jeopardize the County’s entire election,” 9th Circuit Judges Mark Bennett, a Trump appointee, and Gabriel Sanchez, a Biden appointee, wrote in their Friday decision rejecting the Justice Department’s emergency request.
The two judges cited longstanding legal precedent, known as the Purcell principle, that election rules should not be altered on the eve of an election, as well as the fact that the Constitution gives states authority to run elections. The opinion also cited the National Voter Registration Act, which bars states from systematically removing ineligible voters within 90 days of a federal election.
The panel’s third judge, Patrick Bumatay, also a Trump appointee, dissented.
The actual number of ballots in dispute is likely much smaller than 20,000, since county election officials have found that many of the people on DOJ’s list did not have active voter registrations and were not mailed ballots.
Over the weekend, data scientists at University of California Los Angeles’ Voting Rights Project were granted access to the DOJ’s list through a court order in another lawsuit and found that 42% of the names on the list do not appear on California’s current voter roll. That analysis also found naturalized citizens on the DOJ’s list.
The Justice Department’s appeal to the Supreme Court comes as it has been escalating its feud with California election officials.
In recent weeks, the Department of Justice has sent subpoenas to election officials in California, and reminded officials that they could be criminally prosecuted for allowing ineligible voters to cast ballots.
A federal judge in San Francisco issued a temporary restraining order late Friday barring the Trump administration from threatening, intimidating or coercing election officials to demand they stop processing the ballots of registered voters that the federal government alleges are ineligible to vote. The federal government has appealed the order.
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