WASHINGTON — On the day before the midterm election, Trump administration lawyers asked the Supreme Court to intervene and set aside ballots from 20,000 California voters who the administration says may not be citizens. John Sauer filed an emergency appeal on Monday. The court should also enter an administrative injunction to that effect while it considers this application.” It’s not clear whether the court will see this as an emergency.
The appeal goes first to Justice Elena Kagan. She could ask for a response from California, which would take days. So far, the administration has lost before a federal judge in Los Angeles and twice at the 9th Circuit Court of Appeals in San Francisco.
Those judges said that Trump’s lawyers were wrong on the Constitution and that their complaint came too late for this election. In May, more than 23 million Californians were registered to vote, and the majority lean in favor of Democrats. But Trump claimed again last week “there are hundreds of thousands of bad ballots, bad votes, in California.
Millions, in my opinion.” In mid-October, the Trump administration sued and said federal courts should require California and Los Angeles County to “set aside vote-by-mail ballots from persons identified by the federal government likely to be non-citizens.” Federal law says that within 90 days of an election, officials may not “systematically remove the names of ineligible voters from the official lists of eligible voters.” Separately, the Supreme Court also has repeatedly frowned on “late-breaking, court-ordered rule changes” involving elections. The California court cases have also put a spotlight on the state vs. federal divide in election law. Usually, federal laws are deemed to be the “supreme law” and override state laws that are in conflict.
No one disputes U.S. prosecutors may bring criminal fraud charges against noncitizens who violate a federal law by registering with a state to vote and casting an illegal ballot. But election rules and procedures are different. The Constitution says “the Times, Places and Manner of holding elections for Senators and Representatives shall be prescribed in each state,” unless Congress acts by law to “alter” its regulations.
The 9th Circuit judges in Friday’s opinion said that “this clause expressly dictates which sovereign has the authority to prescribe the manner in which congressional elections are conducted.” “If the United States believes different procedures are necessary for vote-by-mail ballots, we believe it should take that suggestion to Congress, not the courts,” said Judges Mark J. Bennett, a Trump appointee, and Gabriel P. Sanchez, a Biden appointee.
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