With just a day to go before Election Day on Nov. 3, the Department of Justice is asking the U.S. Supreme Court to wade into its feud with California over the state's voter rolls.
After a federal district judge and a divided 9th Circuit Court of Appeals panel rejected the DOJ's request to order California to set aside and stop processing the ballots of thousands of people, the DOJ filed a notice Monday that it plans to appeal to the high court.
It remains to be seen whether the Supreme Court will agree to intervene and whether it would weigh in before Election Day if it does.
The DOJ says it has identified 20,000 "likely" noncitizens on California's voter roll whose ballots should not be counted until their citizenship can be verified.
Courts so far have sided with California and Los Angeles County's arguments that the federal government's list is unreliable, and that creating a novel system to segregate ballots while voting is already underway is infeasible.
"[T]here is a material risk that granting the United States its requested relief would result in disenfranchisement and could jeopardize the County's entire election," 9th Circuit Judges Mark Bennett, a Trump appointee, and Gabriel Sanchez, a Biden appointee, wrote in their Friday decision rejecting the Justice Department's emergency request.
The two judges cited longstanding legal precedent, known as the Purcell principle, that election rules should not be altered on the eve of an election, as well as the fact that the Constitution gives states authority to run elections. The opinion also cited the National Voter Registration Act, which bars states from systematically removing ineligible voters within 90 days of a federal election.
The panel's third judge, Patrick Bumatay, also a Trump appointee, dissented.
The actual number of ballots in dispute is likely much smaller than 20,000, since county election officials have found that many of the people on DOJ's list did not have active voter registrations and were not mailed ballots.
The Justice Department's appeal to the Supreme Court comes as it has been escalating its feud with California election officials.
In recent weeks, DOJ officials have warned local election officials they could be criminally prosecuted if they do not cooperate with federal demands to segregate ballots. Last week, the Justice Department sent grand jury subpoenas to employees at the Los Angeles County Registrar-Recorder's office.
Copyright 2026 NPR