The Supreme Court will not order California to hold back any mail ballots before it counts them. In a one-line order released shortly before 6 p.m. Eastern on Monday, the justices denied the Justice Department’s request to make state and Los Angeles County officials set aside California ballots cast by about 20,000 people the DOJ says are likely noncitizens.
The order, in United States v. California, No. 26A624, reads in full: the application “presented to Justice Kagan and by her referred to the Court is denied.” No justice noted a dissent, and the Court acted without asking California to file a response first, CBS News reported.
That settles the question that mattered on Election Day. Every California ballot goes into the count under the state’s normal rules, including those from the voters on the federal list. The 20,000 figure is the DOJ’s allegation, and no court has accepted it.
Four courts, four refusals in eight days
This is the answer to the question we asked on Oct. 24, when the DOJ was suing Alaska and California over ballots and pushing for a ruling before the vote. California Attorney General Rob Bonta’s office counts four losses for the administration, in a statement Monday.
On Oct. 26, the 9th Circuit dismissed the DOJ’s first appeal because the trial judge had not yet ruled. Two days later, District Judge David O. Carter in Los Angeles denied a temporary restraining order.
On Oct. 30, a 9th Circuit panel refused an injunction pending appeal by 2-1. On Monday, the Supreme Court said no.
Solicitor General D. John Sauer filed the 19-page application Monday, SCOTUSblog’s Amy Howe reported. His central argument was urgency. “Once California commingles the challenged ballots with lawful ones,” he wrote, “there is no way to get the challenged ballots back.”
Bonta called the filing “a Hail Mary” and “baseless,” according to CNBC. In his statement he said the decision “should put an end to the Administration’s attempt to disrupt California’s elections through emergency court orders.”
What Judge Carter found wrong with the list
The justices gave no reasons, which is common for emergency orders. The reasoning that stands is Carter’s 26-page order, which we read in full. The 9th Circuit majority found no clear error in his findings.
Carter traced how the list shrank. The government bought California’s voter roll in May. On July 16 it told Secretary of State Shirley Weber that “there may be as many as 190,832 non-citizens registered to vote in California.” By Oct. 13 the list it handed Los Angeles County had about 20,000 names, and the judge wrote that the government never explained the cut.
He found the government gave “no error rates” or validation against a benchmark. It disclosed only the night before the hearing that it had used LexisNexis to enrich the data. He also pointed to Nevada, where federal checks flagged up to 15,903 voters, then 6,218, then 185, all of whom state officials later confirmed were citizens, according to a filing he cited.
The county’s own review found 7,035 of the 20,000-plus records had Los Angeles County addresses. In a 200-record sample, 42.9% of registrations were already cancelled. Carter concluded the list came from “a procedure rife with uncertainty and errors.”
The 9th Circuit majority, Judges Mark Bennett and Gabriel Sanchez, added an argument the DOJ had resisted. Federal law bars systematic removals from voter rolls within 90 days of a federal election. Under California law, the court said, acting on the list as proof of ineligibility could end in cancelled ballots and registrations.
Judge Patrick Bumatay dissented. He called the request “a modest remedy” that “would not cancel any vote.” He also wrote that when the federal government ran the county’s sample through its own systems, it “confirmed that none were born here,” after the county said nearly 40% had been.
What the DOJ can still pursue
The Supreme Court denied an injunction pending appeal, so the appeal itself, 9th Circuit No. 26-7231, and the lawsuit in Carter’s court both technically remain. In practice, Sauer’s own argument limits what a later win could achieve. California has said it cannot trace a ballot once it is processed, so ballots counted this week stay counted.
The sharper tool is criminal. On Monday, hours after the application, federal prosecutors in Los Angeles charged six more lawful permanent residents with falsely claiming citizenship to register and vote, NBC Los Angeles reported. That brings “Operation Protect the Vote” to 34 defendants.
First Assistant U.S. Attorney Bill Essayli said all 34 appear on the list given to California. The charges are allegations, and each defendant is presumed innocent. Carter’s order had pointed to exactly this route, prosecuting individual voters under the federal statute, as the “clear remedy available.”
A separate fight continues over the DOJ’s warnings to county workers. In San Francisco, U.S. District Judge Trina Thompson has ordered the administration not to threaten to prosecute election workers who let potentially ineligible voters cast ballots.
At a hearing Monday on whether to lift that order, she asked DOJ lawyer Kenneth Kao if the department’s lists had a high error rate. “That’s a fair statement,” Kao said, adding that this was why the DOJ wanted registrars’ help verifying the voters, the Associated Press reported.
Alaska’s case is also out, for now
The DOJ’s other pre-election ballot suit fell a day earlier. On Sunday, Judge Sharon Gleason in Anchorage dismissed the bid to block certification of Alaska’s Senate race if Sen. Dan Sullivan loses, CNBC reported.
She found the government lacked standing because it never explained how its requested relief could fix its alleged injury. She dismissed without prejudice but refused to let the DOJ amend again, calling that futile. A DOJ spokesperson said the department would appeal to the 9th Circuit.
Washington state is the third front. There, prosecutors asked Secretary of State Steve Hobbs to hold back ballots from more than 400 alleged noncitizens, a demand we tracked last week. Hobbs has said the list includes “many” U.S. citizens, according to CBS News.
How California counts from here
California has about 23 million registered voters, and each was mailed a ballot. More than 6 million had come back before Election Day, according to AP data.
The Secretary of State’s calendar sets the rest. Mail ballots postmarked by Tuesday count if they reach county offices by Nov. 10.
Counties must certify results by Dec. 3, and Weber certifies the statewide Statement of Vote on Dec. 11, the same deadline Carter cited.
Results start posting after polls close at 8 p.m. Pacific, but counting can run for weeks, as our guide to when results land explains. The next fixed date in the ballot fight is Nov. 10, when the last mail ballots must arrive.
