Justice Department cites ballot commingling to seek limited ballot injunction

California says separating the challenged ballots is now logistically impossible

In a California election dispute, the Justice Department asked the Supreme Court on Monday for a “limited injunction” directing the state to set aside disputed mail ballots while the case proceeds. Solicitor General D. John Sauer wrote, “Once California commingles the challenged ballots with lawful ones, there is no way to get the challenged ballots back.” The emergency appeal came the day before Tuesday’s midterm elections that will determine control of Congress and followed lower-court rejections of the government’s effort to set aside about 20,000 disputed ballots.

The Justice Department’s rationale for seeking the order is that separation becomes impossible after commingling, according to Sauer’s statement. The federal government says the disputed ballots came from people it suspects may not be citizens and should not be counted until the voters’ status can be verified. California officials say the federal list is highly unreliable and likely includes many people who are U.S. citizens.

U.S. District Judge David O. Carter denied the Justice Department’s request and warned that the demand could disenfranchise citizens in Tuesday’s midterm elections. Carter wrote, “If the Executive can discount votes and threaten an ongoing election due to unproven allegations, then our democracy is in danger.” The judge also said segregating ballots would “wreak havoc” on the midterms and erode trust in the democratic process. Carter was nominated by President Bill Clinton, a Democrat.

A 2-1 appeals court panel upheld Carter’s order. One judge appointed by Trump and another appointed by President Joe Biden, a Democrat, voted in favor. The third judge, also appointed by Trump, dissented and argued that California’s unwillingness to separate the ballots encourages the “violation of federal law.”

Voting in California, a largely Democratic state, has been underway since early October. The state mails ballots to all of its roughly 23 million registered voters, and hundreds of thousands of ballots have already been processed. California election officials said finding and setting aside the challenged ballots now would be logistically impossible.

The Republican Trump administration has prioritized identifying noncitizen voters this year, despite noncitizen voters being rare.

The Justice Department also sought to move the case along quickly, but its request that the appeals court intervene early was unsuccessful.

The Supreme Court has granted the administration a series of emergency wins during Trump’s second term, but the justices previously rejected the president’s push to restrict mail ballots ahead of the midterms.

At issue is whether the Supreme Court will direct California to remove the disputed ballots from the count while the litigation continues. California has said the separation is no longer feasible, and the lower courts have sided with the state.