The Justice Department asked the Supreme Court on Monday to make California set aside the mail ballots of roughly 20,000 people it calls likely noncitizens, and the justices said no within hours, on the eve of Election Day. The timing is the story: more than 57 million Americans had already voted by Monday night, and the administration was asking for a sorting system to be invented in the middle of the largest early vote a midterm has ever produced.
We think that request was never about catching noncitizens. It was a bid to plant doubt about California’s count before a single result came in, and every court that looked at it said so in its own legal language.
Four Days, Four Rulings
Here is how the ask fell apart, in order.
| Date | Court | What happened |
|---|---|---|
| Oct. 29 | Federal district court, Judge David Carter | Refused to order the ballots segregated, as we reported |
| Oct. 30 | Ninth Circuit | Panel split 2 to 1 against the Justice Department |
| Nov. 2 | Justice Department | Filed an emergency application at the Supreme Court |
| Nov. 2, hours later | Supreme Court | Application denied in an unexplained order |
The Supreme Court gave no reasoning, and Roll Call reported that the denial was unanimous. The reasoning that matters sits in the opinion below it. The Ninth Circuit majority, Judges Mark Bennett, a Trump appointee, and Gabriel Sanchez, a Biden appointee, warned of “a material risk that granting the United States its requested relief would result in disenfranchisement.” It leaned on the rule against changing election procedures right before an election, on the states’ constitutional authority over elections, and on the 90-day limit the National Voter Registration Act puts on systematic removals.
Carter was blunter. He called the conduct “a broad, ongoing pattern of attempted election interference by federal officials.”
The List Was Shakier Than the Number
The application leaned on 20,000 people. That figure is the ceiling, not the count. UCLA’s Voting Rights Project analyzed the list and found that 42 percent of the names do not appear on California’s current voter roll, and that it also contains naturalized citizens. Apply that to the 20,930 names in the department’s own filing and about 8,800 of them are not registered in California at all, so no ballot was mailed to them. Our arithmetic is 20,930 times 0.42, and it is an approximation, but it shows how much of the headline number evaporates before a single ballot is touched.
County officials said the same thing from the other direction: many people on the list had no active registration and were never sent a ballot. You cannot set aside a ballot that does not exist. Read together with the department’s separate push for a contempt finding over analyses of the list, this is an agency defending a number it cannot support.
What a Record Early Vote Does to a Demand Like This
Early voting is the reason the request was so dangerous. The University of Florida’s count, cited by Al Jazeera, put the early total at about 53 million as of Sunday, with registered Democrats at more than 11 million and registered Republicans at about 8 million. NBC’s tracker had passed 57 million by Monday night. Texas alone is past 7 million, and South Carolina is up 83 percent on 2022 at the same point.
Be careful with the headline comparison. The 2022 early-vote total of roughly 46 million is a final figure for the whole period, and Al Jazeera notes it is not clear the two numbers were measured at the same point. MIT’s Charles Stewart has cautioned that some of this may be voters moving off Election Day, not new voters showing up. What no one disputes is the scale: tens of millions of ballots are already in the system, in envelopes and in county offices. Ordering one state to pull a slice of them out by name, on the strength of a list that is wrong about a large share of the people on it, is how legitimate voters get thrown out.
That is the point of the rule against changing procedures this close to an election, and it is why a Trump-appointed judge helped write the order that stopped it.
This Was Always the Plan
The department did not stumble into this. It sued in October days after California officials declined a flash drive of names, then subpoenaed election officials and reminded them they could face criminal prosecution. A San Francisco federal judge has already restrained the administration from threatening or coercing officials over the ballots of registered voters it claims are ineligible, and the government is appealing that too. We covered the earlier California fraud claims: 28 charged against a claim of 190,000.
Losing every round does not look like a failure from inside this strategy. A filing in the final 48 hours produces a headline about “20,000 likely noncitizens” whether or not any court agrees, and the headline outlives the ruling. Expect to hear it again Wednesday if a California race is close.
What to Watch Tonight
California’s count is slow, and it will stay slow. Mail ballots are verified over days, which means the state’s totals will keep moving while the administration’s lawyers keep talking. The right response is patience, and a public that knows the Supreme Court, hours after being asked, declined to touch these ballots. Counties should count them. The Justice Department should stop filing.