The Day Before the Election, the DOJ Asked the Supreme Court to Seize 20,000 Ballots. Sure. Why Not.
By Dakota Jones
Desk: Political & Government, Campaigns & Elections
ANCHOR OPEN
One day before California’s Nov. 3 midterm election, the Justice Department asked the U.S. Supreme Court to intervene in a fight over roughly 20,000 ballots.
The request is to make California set aside ballots tied to people the DOJ says are “likely” noncitizens. That description is an allegation, not a court finding. And “20,000 ballots” is a headline-friendly shorthand for a list of names, not proof that 20,000 ballots were mailed, returned, or cast.
Two lower courts have already rejected the government’s emergency request. The Supreme Court has not said whether it will take up the case, or whether it would act before Election Day.
So, yes: this is a high-stakes legal dispute arriving at the most inconvenient point on the election calendar. The calendar, as it turns out, does not care about anyone’s filing schedule.
THE THIRD RUNG
To understand how the case reached the Supreme Court, follow the ladder.
First: U.S. District Judge David Carter of the Central District of California rejected the DOJ’s request. Carter, a Clinton appointee, found against the government’s bid to require California to set aside the disputed ballots.
Second: On Friday, a divided Ninth Circuit panel rejected the DOJ’s emergency request. Judges Mark Bennett, a Trump appointee, and Gabriel Sanchez, a Biden appointee, formed the majority. Judge Patrick Bumatay, also a Trump appointee, dissented.
Third: On Monday, the DOJ filed a notice seeking injunctive relief from the Supreme Court.
That means the government is asking the justices to order action. It does not mean the Supreme Court has granted the request, taken control of ballots, or ruled that the people on the list are ineligible. As of Monday, those outcomes remain undecided.
The Ninth Circuit majority warned that granting the relief could harm eligible voters and disrupt election operations. Its opinion said there was “a material risk that granting the United States its requested relief would result in disenfranchisement and could jeopardize the County's entire election.”
That is not a small procedural footnote. It is the central problem with trying to build a new ballot-handling process on the eve of an election.
WHY THE COURTS SAID “NOT NOW”
The Ninth Circuit pointed to three legal concerns. Each one matters beyond this case.
1. The Purcell principle
The Purcell principle is a legal doctrine cautioning courts against changing election rules close to Election Day. The concern is practical: late changes can confuse voters, burden election administrators, and create uneven procedures when voting is already underway.
The principle does not mean election rules can never be challenged. It means timing matters. A remedy that might be manageable months earlier can become dangerous when ballots are being processed and voters are already relying on established procedures.
2. States administer elections
The Constitution assigns election administration responsibilities to the states. That does not put state election officials beyond federal law or judicial review. It does mean that changing the mechanics of an ongoing state election raises serious questions about authority and workable administration.
In this case, the requested relief would require California to identify and set aside ballots linked to a disputed federal list. The courts have not accepted the government’s case for carrying out that change at this late stage.
3. The NVRA’s 90-day quiet period
The Ninth Circuit also cited the National Voter Registration Act, or NVRA. Among other provisions, the law restricts systematic voter-roll removals within 90 days of a federal election, subject to exceptions.
The 90-day period is designed to protect against sweeping, last-minute roll maintenance that could mistakenly remove eligible voters. The legal issue here is not simply whether states may maintain accurate voter rolls. They may. The question is whether the specific action requested can lawfully and safely be imposed at this point in the election cycle.
Those distinctions matter. “Verify eligibility” may sound simple. “Identify individual ballots, keep them from being counted, and do it consistently across an active election” is a different operation entirely.
WHAT THE 20,000 FIGURE DOES, AND DOES NOT, MEAN
The DOJ says its list identifies roughly 20,000 people in California it considers “likely” noncitizens. That figure should not be repeated as though it means 20,000 confirmed noncitizen votes.
County officials found that many names on the list had no active voter registration and were never mailed ballots. Over the weekend, data scientists with UCLA’s Voting Rights Project gained access to the list through a court order in a separate lawsuit. Their review found that 42% of the names did not appear on California’s current voter roll. The review also found naturalized citizens on the list.
These findings do not establish that every name is wrong. They do show why a list is not the same thing as a verified ballot count.
A person’s name appearing in a government database does not, on its own, prove that the person is registered, received a ballot, returned a ballot, or is ineligible to vote. Those are separate facts. They require separate verification.
And naturalized citizens are U.S. citizens. If they meet the applicable voting requirements, they are eligible to vote. A list that includes naturalized citizens is a reason to examine the matching process carefully, not a reason to treat the list itself as proof.
The useful question is not just “How many names are on the list?” It is “What can the evidence establish about each person and each ballot?”
A WIDER FIGHT OVER ELECTION OFFICIALS
The Supreme Court request is part of a broader conflict between federal officials and California election administrators.
The DOJ has subpoenaed California election officials and reminded them that they could face criminal prosecution. On Friday night, a federal judge in San Francisco issued a temporary restraining order barring the administration from threatening, intimidating, or coercing election officials to stop processing ballots. The government has appealed that order.
Separately, a federal judge in Washington, D.C., ordered the administration on Friday to share its disputed list with the Coalition for Humane Immigrant Rights and UCLA’s Voting Rights Project.
And at least three Los Angeles County election officials have been subpoenaed to appear before a grand jury on Nov. 4-the day after the election.
Last week, Judge Carter described the DOJ’s conduct as “a broad, ongoing pattern of attempted election interference by federal officials.” That is Carter’s characterization, not a final finding resolving every dispute now underway. But it signals the seriousness with which the judge viewed the developments before him.
Taken together, these actions place election workers, court orders, voter data, and ballot processing in the middle of an escalating legal confrontation. That is a lot to manage while counties are also doing the ordinary, essential work of running an election.
WHAT YOU SHOULD WATCH NEXT
For voters and anyone following the case, keep an eye on three things:
- Whether the Supreme Court acts. The DOJ has asked for relief, but it is not yet known whether the Court will take the case or rule before Election Day.
- What the records actually show. The disputed list is not the same as a confirmed count of ballots or ineligible voters.
- Whether election procedures remain stable. The lower courts emphasized the risk that a last-minute change could disenfranchise voters or jeopardize election operations.
Be precise when sharing updates. “The DOJ says these names are likely noncitizens” is not the same as “these are confirmed noncitizen voters.” “The government asked the Supreme Court to order ballots set aside” is not the same as “the Supreme Court seized ballots.” The first versions describe the current dispute. The second versions claim outcomes that, as of Monday, have not happened.
For more election reporting and updates, visit LD3 Productions’ Election Headquarters.
FAQ
Did the Supreme Court order California to set aside the ballots?
No. As of Nov. 2, the DOJ had asked the Supreme Court for injunctive relief. It was not yet known whether the Court would take the case or act before Election Day.
Are there 20,000 confirmed ballots at issue?
No. The DOJ’s figure refers to people it says are “likely” noncitizens. County officials found many names had no active registration and were never mailed ballots. The actual number of ballots in dispute is likely much smaller.
What did UCLA’s review find?
After gaining access to the list through a court order in a separate lawsuit, UCLA Voting Rights Project data scientists found that 42% of the names did not appear on California’s current voter roll. They also found naturalized citizens on the list.
Why did the Ninth Circuit reject the emergency request?
The majority cited the risk of disenfranchisement and disruption, the Purcell principle against last-minute election changes, the constitutional role of states in administering elections, and the NVRA’s 90-day quiet period before federal elections.
FINAL THOUGHTS
The DOJ’s Supreme Court filing is a request, not a ruling. The list is disputed, not a verified count of ballots cast by ineligible voters. And the two courts that considered the emergency request before the Supreme Court rejected it, warning that a last-minute intervention could harm voters and election operations.
For you, the practical step is straightforward: separate claims from findings, and filings from outcomes. Watch for what the courts actually order, and what the evidence establishes. In an election, precision is not a luxury. It is part of protecting public trust.