Supreme Court must reject Justice Department demands in California

By Adele Rutherford · Reporting from Atlanta · November 2, 2026

The Department of Justice asked the Supreme Court to halt counting disputed California ballots, but judges must enforce statutory procedure and reject late federal intervention.

Federal overreach on the eve of the vote

On Monday, one day before Election Day, the Department of Justice petitioned the U.S. Supreme Court regarding California's voter rolls, as reported by NPR and CNN. Solicitor General D. John Sauer submitted a 19-page filing to Justice Elena Kagan, according to SCOTUSblog. Justice Kagan holds primary responsibility for emergency appeals from the 9th Circuit. The administration petitioned the Supreme Court to block California from counting mail-in ballots of 20,000 voters, as noted by CNBC. The Department of Justice suggests these voters may not be U.S. citizens.

This emergency application asks the highest court to alter the machinery of a state election while citizens are actively casting ballots. The filing asks the court to require California to keep the ballots separate until citizenship is verified. Sauer argued that the government is likely to prevail on the merits. Federal law prohibits non-U.S. citizens from voting in federal elections. He also asserted that the United States will suffer permanent harm.

Yet this extraordinary demand ignores the fundamental distribution of authority established by the Framers. The U.S. Constitution grants states the authority to run elections. Executive attempts to override these local procedures with a flawed database list on the eve of an election violate the core tenets of federalism. Judge David Carter, a Clinton appointee, correctly recognized the danger in the initial district court proceedings. As detailed by NPR and CNBC, Judge Carter previously described the DOJ's actions as "a broad, ongoing pattern of attempted election interference by federal officials."

The administration's list itself crumbles upon basic inspection. Data scientists at the University of California Los Angeles' Voting Rights Project reviewed the DOJ's list. They found that 42% of the names do not appear on California's current voter roll. Furthermore, the analysis found naturalized citizens included on the DOJ's list. Los Angeles County and California argued that the federal list is unreliable. Segregating ballots while voting is underway is infeasible. A faulty roster and demands to freeze votes based on guesswork rely on database matching. That practice has no place in a system governed by law rather than administrative fiat.

Procedural guardrails and the Purcell principle

Before the Supreme Court petition arrived, the lower federal courts applied the necessary procedural guardrails. A three-judge panel of the 9th Circuit denied the DOJ's appeal in a 2-1 ruling. The majority ruling was issued by Circuit Judges Mark Bennett, a Trump appointee, and Gabriel Sanchez, a Biden appointee. Judge Patrick Bumatay, a Trump appointee, dissented from the 9th Circuit panel's decision.

The 9th Circuit majority cited the Purcell principle, which holds that election rules should not be altered on the eve of an election. The court also cited the U.S. Constitution, which grants states authority over elections. It further cited the National Voter Registration Act, which prohibits states from systematically removing ineligible voters within 90 days of a federal election. Judges Mark Bennett and Gabriel Sanchez wrote that "there is a material risk that granting the United States its requested relief would result in disenfranchisement and could jeopardize the County's entire election."

This approach parallels the statutory framework of the National Voter Registration Act of 1993. That federal law prohibits states from removing registered voters from the voter rolls unless certain criteria are met. The 9th Circuit judges understood that altering election administration mid-stream causes irreparable administrative chaos. As the appellate court aptly noted, if the executive branch believes different procedures are necessary for vote-by-mail ballots, it should take that suggestion to Congress, not the courts.

The executive branch's impatience with statutory procedure cannot justify judicial shortcuts. The Department of Justice sent subpoenas to California election officials, as reported by ABC News. The department warned officials they could face criminal prosecution for allowing ineligible voters to cast ballots. To counter scrutiny, the department even urged sanctions for database analysis critical of its noncitizen voting claims. On Friday, U.S. District Court Judge Trina L. Thompson of San Francisco issued a temporary restraining order. The order bars the administration from threatening, intimidating, or coercing election officials to demand they stop processing registered voters' ballots. The federal government has appealed that temporary restraining order, compounding its campaign of intimidation.

The cost of treating rules as disposable tools

Legitimacy is a capital stock that spends fast and refills slowly. When the executive branch treats the judiciary as an instrument to override state election machinery right before voting concludes, it draws down that finite capital. A rule that only works while your people hold power was never a rule. If an administration can bypass the National Voter Registration Act to segregate thousands of ballots using unverified data, opposing administrations will use that same mechanism tomorrow. Procedure is where power actually lives, and discarding procedure for a temporary advantage ensures that no citizen can trust the final tally. The Supreme Court must reject this emergency application and let the votes of California be counted according to law.

Supreme Court must reject Justice Department demands in California

Federal overreach on the eve of the vote

Procedural guardrails and the Purcell principle

The cost of treating rules as disposable tools

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