DOJ asks Supreme Court to block California counting disputed mail-in ballots

The Trump administration on Monday asked the Supreme Court to temporarily block California from counting mail-in ballots of about 20,000 voters whom the Department of Justice suggests may not be U.S. citizens.

The DOJ's petition to the Supreme Court came three days after the 9th Circuit U.S. Court of Appeals rejected the department's bid to overturn a federal district court judge's ruling that allowed the ballots to be counted.

The petition comes a day before Election Day. The Supreme Court could act on the petition at any time, but there is no deadline.

The midterm elections will determine which parties hold majorities in both chambers of Congress.

"In this case, this Office has been informed that the United States has identified more than 20,000 individuals who appear to be registered to vote in California based on publicly available information at the time that information was received, but who, in the United States' view, are likely not U.S. citizens," Solicitor General D. John Sauer said in application to the Supreme Court on Monday.

Sauer said "the United States is likely to succeed on the merits of its appeal" of the lower court ruling denying the DOJ's request.

"The district court concluded that the United States lacks Article III standing to bring this suit, but the United States suffers a judicially cognizable 'injury to its sovereignty' from the 'violation of its laws,'" Sauer said in the petition. "Once California commingles the challenged ballots with lawful ones, there is no way to get the challenged ballots back."

The DOJ sued California on Oct. 15 in U.S. District Court in Los Angeles. The complaint sought to prevent state election officials from tabulating mail-in ballots "from likely non-citizens in the upcoming federal election until the voter's citizenship status can be determined."

The DOJ previously gave Los Angeles County officials a thumb drive containing names of voters the department suggested could be noncitizens, who by law are barred from voting in federal elections.

Last Wednesday, Judge David Carter denied the DOJ's request that he order California officials to set aside mail ballots from alleged noncitizens named on a list prepared by the Department of Homeland Security, and not count their votes until their citizenship is confirmed.

"This case is about the right of every American citizen to vote in a free and fair election," Carter said in his ruling.

"Never before in American history has the federal government, on the eve of an election, sought to coerce a state and local government to abandon their own Constitutional elections procedures and bend to the will of the Executive Branch," Carter wrote.

"In bringing this lawsuit, the Executive would have this Court believe that it reigns as a sole sovereign. But California and its people are sovereign, too."

The DOJ then appealed that ruling to the 9th Circuit. A three-judge panel on that court denied the appeal in a 2-1 ruling on Friday

"There is a material risk that granting the United States its requested relief would result in disenfranchisement," said the ruling by the majority, Circuit Judges Mark Bennett and Gabriel Sanchez. Bennett was appointed by President Donald Trump, and Sanchez was appointed by former President Joe Biden.

On Sunday, a federal judge dismissed a DOJ lawsuit that sought to block Alaska election officials from immediately certifying the result of the U.S. Senate election there if incumbent Republican Sen. Dan Sullivan loses that race by a margin that could be attributable to voter confusion about another candidate with his name.

The DOJ is appealing that ruling.