Supreme Court Denies DOJ Bid to Pause California Ballot Counting

The Supreme Court denied the Department of Justice's request to temporarily halt California from counting mail-in ballots on Monday evening. The one-sentence order arrived hours after the DOJ filed its application and the day before Election Day. The court did not provide a reason for the denial, and no justices noted a dissent. Justice Elena Kagan presented the request to the full court, which issued its decision without seeking a response from California officials.

The ruling leaves California free to tabulate votes from approximately 20,000 individuals. The Justice Department argued these voters are likely not U.S. citizens. Solicitor General D. John Sauer stated in his application that the U.S. had identified these individuals based on publicly available information. He warned that once California mixes these ballots with lawful ones, there is no way to separate them later. Sauer also asserted that the United States has standing to sue because counting these ballots constitutes an injury to its sovereignty.

This denial follows a series of legal setbacks for the Trump administration in the weeks leading up to the midterms. On Friday, a three-judge panel from the 9th Circuit Court of Appeals rejected the DOJ's appeal of a lower court ruling. The panel voted 2-1 to keep the district judge's order intact. Circuit Judges Mark Bennett and Gabriel Sanchez wrote that granting the DOJ's relief carried a material risk of disenfranchisement. The DOJ had sued California on Oct. 15 in Los Angeles to stop the counting of these specific mail ballots.

Judge David Carter first denied the DOJ's request last Wednesday. He ruled that the federal government was attempting to coerce state and local governments to abandon their constitutional election procedures. Carter noted that the executive branch does not reign as a sole sovereign. He emphasized that California and its people are also sovereign. The judge stated that the case concerns the right of every American citizen to vote in a free and fair election.

In a separate but related matter, a federal judge in California barred the DOJ from threatening election workers with criminal prosecution. During a hearing on Monday, a DOJ lawyer admitted that the lists of purported noncitizens had a high error rate. The lawyer argued these errors were evidence for why officials need to examine the rolls. Judge Trina Thompson presided over that second case. The DOJ is also appealing a Sunday ruling in Alaska. That ruling dismissed a lawsuit aimed at blocking the certification of the state's U.S. Senate race if incumbent Sen. Dan Sullivan loses by a narrow margin.

The midterms will determine which party holds majorities in the House and Senate. Pollsters and analysts widely predict Democrats will make gains in these contests. The DOJ previously provided Los Angeles County officials with a thumb drive containing names of voters it suggested could be noncitizens. By law, noncitizens are barred from voting in federal elections. The department sought to prevent state officials from tabulating these ballots until citizenship status was confirmed.