Supreme Court allows California to count 20,000 disputed mail ballots

The Supreme Court denied the Department of Justice's request on Monday evening to stop California from counting mail-in ballots cast by approximately 20,000 voters. The one-sentence order arrived hours after the DOJ sought the injunction, placing the decision on the eve of 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. The justices did not ask for a response from California officials before issuing the decision. This ruling marks another legal setback for the administration, which is involved in multiple other lawsuits regarding the midterm elections. These contests will determine which party controls the House and Senate, with pollsters predicting substantial Democratic gains.

The DOJ filed its application to the Supreme Court three days after the 9th Circuit Court of Appeals rejected the department's appeal. That same week, a federal district judge in a separate California case barred the DOJ from threatening election workers with criminal prosecution if they refused to stop processing ballots. During a Monday hearing in that case, a DOJ lawyer told Judge Trina Thompson that the lists of purported noncitizens had a high error rate. The lawyer argued that these errors demonstrated why officials needed to examine the rolls.

Solicitor General D. John Sauer stated in his application that the United States identified more than 20,000 individuals who appear to be registered to vote in California but are likely not U.S. citizens. Sauer claimed the district court erred in finding the United States lacked Article III standing. He argued that once California mixes the challenged ballots with lawful ones, there is no way to retrieve them.

The DOJ originally sued California on Oct. 15 in U.S. District Court in Los Angeles. The complaint sought to prevent state officials from tabulating mail-in ballots from likely noncitizens until their status was determined. The department previously provided Los Angeles County officials a thumb drive with names of voters it suggested could be noncitizens. On Wednesday, Judge David Carter denied the DOJ's request to set aside those ballots. Carter noted that the federal government had never previously sought to coerce a state to abandon its constitutional election procedures on the eve of an election.

The 9th Circuit panel denied the DOJ's appeal on Friday in a 2-1 vote. Circuit Judges Mark Bennett and Gabriel Sanchez wrote that there was a material risk that granting the relief would result in disenfranchisement. In a separate matter, a federal judge dismissed a DOJ lawsuit on Sunday that sought to block Alaska officials from certifying the result of a U.S. Senate race if incumbent Republican Sen. Dan Sullivan lost by a margin attributable to voter confusion. The DOJ is appealing that ruling as well.