On the day before the midterm election, Trump administration lawyers asked the Supreme Court to intervene and set aside ballots from 20,000 California voters who the administration says may not be citizens. Solicitor Gen. D. John Sauer filed an emergency appeal on Monday. "The Court should issue a limited injunction directing California to stop commingling suspected illegal ballots with legal ones," he wrote, "pending completion of the United States’ appeal to the 9th Circuit and further review in this Court."

He said the court should require "California to segregate mail ballots from persons whom the United States has identified as likely non-citizens. The court should also enter an administrative injunction to that effect while it considers this application." It's not clear whether the court will see this as an emergency. The appeal goes first to Justice Elena Kagan. She could ask for a response from California, which would take days. So far, the administration has lost before a federal judge in Los Angeles and twice at the 9th Circuit Court of Appeals in San Francisco.

Those judges said that Trump's lawyers were wrong on the Constitution and that their complaint came too late for this election. In May, more than 23 million Californians were registered to vote, and the majority lean in favor of Democrats. But Trump claimed again last week "there are hundreds of thousands of bad ballots, bad votes, in California. Millions, in my opinion." In mid-October, the Trump administration sued and said federal courts should require California and Los Angeles County to "set aside vote-by-mail ballots from persons identified by the federal government likely to be non-citizens."

Federal law says that within 90 days of an election, officials may not "systematically remove the names of ineligible voters from the official lists of eligible voters." Separately, the Supreme Court also has repeatedly frowned on "late-breaking, court-ordered rule changes" involving elections.

The California court cases have also put a spotlight on the state vs. federal divide in election law. Usually, federal laws are deemed to be the "supreme law" and override state laws that are in conflict. No one disputes U.S. prosecutors may bring criminal fraud charges against noncitizens who violate a federal law by registering with a state to vote and casting an illegal ballot. But election rules and procedures are different. The Constitution says "the Times, Places and Manner of holding elections for Senators and Representatives shall be prescribed in each state," unless Congress acts by law to "alter" its regulations.

The 9th Circuit judges in Friday's opinion said that "this clause expressly dictates which sovereign has the authority to prescribe the manner in which congressional elections are conducted." "If the United States believes different procedures are necessary for vote-by-mail ballots, we believe it should take that suggestion to Congress, not the courts," said Judges Mark J. Bennett, a Trump appointee, and Gabriel P. Sanchez, a Biden appointee. Dissenting Judge Patrick J. Bumatay, a Trump appointee, called the administration's proposal to separate the 20,000 ballots a "reasonable request" and a "modest remedy" for the problem of illegal voting.

The majority cited a 2013 opinion written by the late Justice Antonin Scalia. "The Elections Clause functions as a default provision," he wrote. "It invests the states with responsibility for the mechanics of congressional elections," unless Congress adopts a different rule. Scalia spoke for a 7-2 majority that rejected an Arizona law that required voters to show documentary proof of their citizenship when registering to vote. In the National Voter Registration Act of 1993, Congress said voters may to vote by filling out a form and attesting under oath they are citizens. California does the same under state law.

Scalia said the federal voter registration law did not allow Arizona to adopt new and stricter rules. In dissent, conservative Justices Clarence Thomas and Samuel A. Alito said they would go farther to protect the states from federal interference in elections. "Given states’ exclusive authority to set voter qualifications and to determine whether those qualifications are met," Thomas said the Arizona restriction should have been upheld.

"The Constitution reserves for the States the power to decide who is qualified to vote in federal elections," Alito added. Last month, Trump's prosecutors brought fraud charges against 28 lawful immigrants in California who are alleged to have registered or voted in the past even though they are not citizens. They did so under a 1996 immigration law which made it "unlawful for any alien" to vote in a federal election. The notion of segregating potentially suspect ballots is not a new issue for the Supreme Court.

In November 2020, Alito agreed with Pennsylvania state officials and said they should set aside late-arriving mail ballots to be counted separately. In response to the COVID-19 pandemic, state election officials and the state Supreme Court agreed to waive part of the state's law and allow for counting mail ballots that arrived up to three days late. Republicans strongly objected. That led to Alito's order. But in the end, the small number of late votes made no difference because the Democratic candidate, former Vice President Joe Biden, decisively won Pennsylvania's votes and defeated Trump.

The California dispute is different because the state has not changed its voting rules or election procedures. Instead, it is the Trump administration that sought a late change in California's voting rules and election procedures.