Here we go: Trump regime’s latest effort to get its election interference ok’d by the Roberts Court. The regime seeks to have the Court require California to “segregate” mail ballots cast by those the regime has identified as “likely noncitizens”. This would require the Court to stay a federal district order against such segregation, an order upheld by the Ninth Circuit Court of Appeals. https://assets.bwbx.io/documents/users/iqjWHBFdfxIU/r2A28lzqdS_4/v0 1/ #LawFedi
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@andy They don’t have to. Administrative stay can be granted without a response. Also, Election Day is not the end of the period for which the Trump regime requests ballot segregation. At a minimum, they will be arguing that this should happen throughout county canvass, which runs through the 13th day after the election.
Reminder of facts and proceedings below. The Trump DHS made up lists of supposed noncitizen voters. It has never been able to defend the accuracy or credibility of these lists. Then, on the strength of a federal misdemeanor statute forbidding noncitizens from voting, the regime instructed California to share California’s voter roll with it, presumably to compare it with the DHS list. CA refused to turn over voter rolls. 2/
This is all in service of the Trump regime’s attempt to take over state election administration, which the U.S. Constitution reserves to the states, subject to some Congressional power to regulate. The federal executive branch has no Constitutional role in U.S. elections. 3/
The Trump regime sued California for the voter rolls and directing it to “segregate” and not count votes by people on the DHS list while their citizenship was verified. In addition to being an unconstitutional assertion of federal executive power, this would create delay and disruption in California’s post-Election-Day count and certification of results. (As I’ve explained before, this is a key aim of the Trump regime.) 4/
The federal district court refused the Trump regime’s request, a refusal upheld by the 9th Circuit Court of Appeals. The Trump regime is now trying to have the Roberts Court do what both these courts refused to do: permit the regime to interfere in California’s election administration, so as to lay the groundwork for post-Election-Day interference. 5/
The request to the Roberts Court is an important early test of that Court’s willingness to read the Constitution in contradiction to how every other court has so far. Every court that has heard arguments like the ones in the California case and decided has ruled against the Trump regime. 6/
The Roberts Court might not act on the Trump regime’s motion. This sort of emergency relief request goes first to the Circuit Justice (here, Kagan) who can address it individually or refer it to the full Court. This process takes time. Were winning margins in the CA House races so big that the Trump regime lists wouldn’t make a difference even if they were wholly accurate, the issue could become moot. But California tallying takes weeks, so the case won’t be mooted in this way any time soon. 7/
Note: the motion includes a request for an administrative stay, which does not depend on assessment of the underlying merits of the substantive injunctive relief requested. If Kagan or the full Court grants an administrative stay, CA would have to hold aside the ballots while Kagan or the full Court considers the substantive injunction. 8/
Just the grant of an administrative stay would create uncertainty and confusion about CA’s counting and certification of results.
The Supreme Court is not obligated to decide one way or the other on a requested administrative stay. So the Roberts Court could simply let events take their full course, without getting involved in this litigation. 9/
There will, however, be a lot of pressure on the Roberts Court judges to get involved.
For us rank-and-file voters, there continues to be one important thing we can do to limit the damage the Roberts Court, or any other court, can inflict. We can vote in massive numbers. If Democratic candidates win their races by wide and unquestionable margins, the scope for judicial action is drastically reduced. 10/10
@heidilifeldman It's remarkable how unsuccessful these election interference attempts have been in the courts, even those staffed by judges predisposed toward the administration.
The intent seems to be not to actually win (which they have to know they won't) but to "flood the zone", and also to have something to complain about after they lose.
I think you're right. They are bad faith stunt lawsuits aimed at feeding the "rigged election" fakery.
@heidilifeldman It's almost as if the literal plain language of the constitution still sometimes matters.
@mattblaze Let’s see how much it matters to the Roberts Court!
@heidilifeldman My prediction is they'll just let this one moot itself, given the timeframe.
@heidilifeldman would the state even have time to submit a reply to the court before Tuesday?