These Election Eve Court Fights Could Reshape the Midterm Vote

Lawsuits on the eve of Election Day are giving courts a brief time window to make influential decisions before final votes are cast. 

The Supreme Court on Monday denied a last-minute emergency appeal by the Justice Department to set aside more than 20,000 ballots of suspected noncitizens in California. 

Meanwhile, lower court judges are still deciding on other Trump administration election law enforcement efforts and a lawsuit alleging voter confusion in a critical Alaska Senate race.

SCOTUS and 20,000 Noncitizens in California

The Supreme Court on Monday rejected the Justice Department’s request to require that California temporarily set aside mail ballots of more than 20,000 suspected noncitizens until their legal status can be verified.

The 9th U.S. Circuit Court of Appeals and district court rejected the administration in the case, asserting that states have the primary authority over elections.

On Monday, the Justice Department announced the arrest of another six foreign nationals for registering to vote and for voting in Los Angeles County. The criminal matter is not related to the civil case, but First Assistant U.S. Attorney Bill Essayli of the Central District of California said the department has charged 34 defendants in “Operation Protect the Vote.”

Democrats Demanding State Sovereignty

In another lawsuit, Democrat groups, led by the Democratic Senatorial Campaign Committee, sued the Justice Department for warning state election officials of legal liability if they knowingly counted illegal votes.

Democrats alleged that the Justice Department interfered with state authority over elections. The U.S. District Court for the District of Columbia will likely have to decide on the lawsuit before voting closes on Election Day.

The case primarily centered on the Justice Department’s demands that California set aside more than 20,000 ballots of suspected noncitizens and that Washington state set aside more than 400 ballots cast by suspected noncitizens. The Justice Department filed a motion Sunday challenging the standing of Democrat groups.

“Not only do the DOJ letters not create a formal rule, but they have no legal effect on their own as the letters themselves do not tabulate ballots, segregate ballots, or alter any individual’s voter registration status,” the DOJ response said.

Other plaintiffs in the case included the Democratic Congressional Campaign Committee, the Democratic Governors Association, and Democrat leaders in the House and Senate, Hakeem Jeffries and Chuck Schumer, both of New York.

Challenging Federal Election Monitors

On another front, the NAACP sued the Trump administration Sunday to bar federal agents from serving as election monitors. The Justice Department plans to deploy at least 1,000 election monitors across the United States.

A hearing was held in the case Monday afternoon in the U.S. District Court for the District of Columbia.

The plaintiffs asked the court to prohibit the Justice Department “shall not order any agent, investigator or other employee of a law enforcement agency to” carry a firearm near a polling site, wear a badge, or have a camera.

The Justice Department first began deploying federal election monitors after the 1965 Voting Rights Act. The number of monitors deployed has generally been fewer; in 2016, the Justice Department announced the deployment of about 500 election monitors. However, in 2004, the department deployed 1,996 election monitors. 

A department spokesperson told the Daily Signal last week there were no plans for armed agents near polling sites.

Lawyers for the plaintiffs including Kristen Clarke, the controversial former Biden administration assistant attorney general for the Justice Department’s civil rights division.

Appealing ‘Decoy Dan’ Litigation

On Sunday, a federal judge in Alaska dismissed on procedural grounds the Justice Department’s lawsuit regarding the candidacy of Daniel J. Sullivan, who is running against Sen. Daniel S. Sullivan, R-Alaska.

The Justice Department appealed the decision to the 9th U.S. Circuit Court of Appeals.

Last week, The New York Times first reported that campaign aides to Democrat Senate candidate Mary Peltola were behind recruiting another candidate named Dan Sullivan to run for Senate and draw votes from the incumbent senator under the state’s ranked-choice voting system.

New Mexico Voter Guides

A New Mexico state court was expected to rule before Election Day on a lawsuit the Republican National Committee filed Thursday against the state’s Democrat secretary of state, Maggie Toulouse Oliver, to stop what it called misleading voter guides from being handed out inside polling places.

The RNC alleges that the guides, created by the New Mexico League of Women Voters, show Republican Senate candidate Larry Marker running in a different contest and feature another candidate’s face next to his name. The lawsuit calls for Oliver, the state’s chief election official, to stop distribution.

Marker is challenging Sen. Ben Ray Luján, D-N.M., in a contest that isn’t seen as competitive. The legal dispute is based on Oliver’s decision to reverse a previous New Mexico policy that kept voter guides created by private organizations away from polling places.

“New Mexico voters are being handed a guide at the polls that puts another candidate’s face next to Republican Senate candidate Larry Marker’s name. That is unacceptable,” RNC Chairman Joe Gruters said in a statement about the lawsuit. “We’re taking Maggie Toulouse Oliver to court to stop it and make sure New Mexico voters can cast their ballots without being fed false information at the polls.”

Neither the New Mexico secretary of state’s office nor the New Mexico League of Women Voters responded to inquiries from the Daily Signal on Monday.

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