Supreme Court Refuses to Hold California Mail Ballots

The Supreme Court on Nov. 2 refused the Justice Department’s emergency request to make California set aside mail ballots cast by about 20,000 people the department says may not be U.S. citizens, leaving those California mail ballots to be counted under state law. The one-sentence order in United States v. California, No. 26A624, came the day before Election Day with no reasons and no noted dissent, after Justice Elena Kagan referred the application to the full Court.

The order ends Washington’s bid to control the California count. It does not end the campaign against suspected noncitizen voters. The same day, federal prosecutors in Los Angeles announced charges against six more green card holders, bringing their tally to 34. For immigrants whose names are on the federal list, the live question is no longer whether their ballot is counted. It is whether their immigration record can withstand a federal prosecutor’s review.

What the Supreme Court decided, and what it did not

The justices denied an injunction pending appeal. That is not a ruling on the merits, and the department’s appeal of U.S. District Judge David O. Carter’s decision technically remains alive in the Ninth Circuit. In practice, it settles the election-week fight. Carter refused to order the ballots held in late October, and a divided Ninth Circuit panel turned the department away again on Oct. 30, finding “there is no feasible way to identify and segregate the ballots of specific individuals,” according to the Associated Press. Once ballots are separated from their envelopes, a later win on the law would recover very little.

The Court acted without asking California to respond, CBS News reported. Unexplained denials are routine on the emergency docket, so the order says nothing about the list’s accuracy, only that no justice saw reason to step into a state’s count at the last minute. Scale mattered too: California voters had returned more than 6 million mail ballots by Monday, CBS reported, so the disputed names equal about 0.3 percent of them, a calculation based on that figure.

The administration’s argument, made most fully by Ninth Circuit Judge Patrick J. Bumatay in dissent, is that “the federal government has a sovereign interest in safeguarding federal elections,” as AP quoted him, and that a noncitizen’s vote cannot be taken back once it is counted. Bill Essayli, the first assistant U.S. attorney in Los Angeles, said Monday that “there are thousands of suspected noncitizens on California’s voter rolls.” State and county officials say the list is full of errors. The UCLA Voting Rights Project told a federal court that 42 percent of the names were not on the current California voter file, CalMatters reported, a finding examined here earlier.

The prosecutions turn on the citizenship form

The six new defendants are lawful permanent residents who are citizens or nationals of the Philippines, Mexico, Israel, Canada and Iran, and they live in Palmdale, West Hills, Agua Dulce and Canoga Park. The U.S. Attorney’s Office for the Central District of California says they voted in elections between 2020 and 2026. None is charged with illegal voting. Each is charged by criminal complaint with making false statements on a naturalization application, which carries a maximum of five years in prison. A complaint contains only allegations, and all six are presumed innocent. Prosecutors say every name was on the list given to California officials.

Prosecutors in the district took the same approach in their first indictments. Form N-400, the citizenship application, asks whether the applicant has ever registered to vote or voted in a U.S. election. A false answer on a form signed under penalty of perjury is often easier to prove than intent at a polling place years earlier, which makes a green card holder’s own citizenship application the main evidence.

The immigration consequences are more serious than the sentence. Under the Immigration and Nationality Act, a noncitizen who votes in violation of law is both inadmissible and deportable. The only exception is narrow: it covers people whose parents were citizens, who lived in the United States before age 16, and who reasonably believed they were citizens. Unlawful voting can also bar naturalization for lack of good moral character.

Thirty-four charges against about 20,000 names is a small yield, and California Attorney General Rob Bonta called the arrests “a fizzle,” according to CalMatters. A separate order issued Oct. 30 by U.S. District Judge Trina Thompson bars the department from threatening election workers over ballots it disputes, CalMatters reported, so further cases are likely to target individual voters, not ballot counters.

The lasting test is the list itself. A federal judge in Washington has ordered the department to share it with lawyers for the Coalition for Humane Immigrant Rights and the UCLA project, AP reported, and Los Angeles County election officials face grand jury subpoenas returnable Nov. 4. If outside review finds many naturalized citizens on it, prosecutions built on the list weaken. If the names hold up, the 34 cases may be only the start.

This article is for general information and is not legal advice.

Sources

Vasanth Vaidyanathan, Esq.

Administrator

Vasanth Vaidyanathan is an immigration attorney with over 20 years of experience focused exclusively on U.S. immigration and nationality law. He holds an LL.M. from California Western School of Law, San Diego and advises individuals and businesses on employment and family-based immigration matters, including H-1B, PERM, EB categories, and adjustment of status. He has also been a featured speaker at immigration seminars across the U.S. To reach Vasanth visit: https://www.vnathan.com/

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