The day before the legislative elections, the Supreme Court of the United States unanimously blocked the Department of Justice's (DOJ) attempt to force California to separate the ballots of approximately 20,000 voters identified as presumed non-citizens, while at the same time an appeals court opened a parallel avenue for continuing to pressure electoral officials across the country.
The two rulings, issued on Monday by the Supreme Court and by the Ninth Circuit, outline a divided legal landscape with direct consequences for naturalized Cubans who will be voting at the polls this Tuesday in Florida.
The highest court denied without a single dissenting vote the DOJ's emergency request in the case United States v. California (file 26A624).
The order, consisting of a single sentence, was presented to Judge Elena Kagan and referred to the full court: "The pending petition for injunction submitted to Judge Kagan and referred by her to the court is denied." Without further explanation, the nine justices closed the door on the federal government's attempt to compel California to set aside those ballots.
But that very Monday, the Ninth Circuit Court of Appeals ruled differently in a related case. By a majority of two to one, judges Carlos Bea and Consuelo Callahan granted the Government a stay on a temporary restraining order that prohibited it from sending threatening letters to election officials.
Chief Judge Mary Murguia strongly dissented, describing the decision as "irreconcilable" with the Supreme Court ruling: "The constitutional assignment of electoral procedures to the states makes no sense if the defendants can coerce the states into abandoning their own procedures by abusing their prosecutorial powers."
The practical result is that the DOJ cannot directly force California to segregate ballots, but it retains the ability to continue sending letters to officials in any state—including Florida—demanding that segregation and warning them of potential criminal charges.
The conflict began on October 13, when the DOJ gave California and Los Angeles County 48 hours to review the list of alleged non-citizens. Three days later, a second letter warned that those "who knowingly count ballots cast by individuals identified by federal agencies as non-citizens risk becoming accomplices to a federal crime." According to the dissenting vote, the DOJ sent similar letters to election officials in 50 states.
Why it matters to naturalized Cubans
The SAVE/USCIS system used to compile these lists has documented errors: in Missouri, between 35% and 50% of those flagged turned out to be citizens; in Texas, 578 of those identified were indeed citizens. The associate director of the fraud unit at USCIS, Nicolas Bartell, acknowledged that the data "may be incomplete, outdated, or inconsistent."
In Florida, there are approximately 691,000 registered voters of Cuban descent, and 66% of Cuban immigrants in the United States are naturalized citizens, as the lawsuit against USCIS warned on October 29. The resolutions from Monday specifically relate to California; there is no evidence in the court documents of a letter addressed specifically to Florida, although the dissenting vote indicates that communications were sent to officials in all states.
What to do if your vote is challenged
Every naturalized citizen has the full right to vote. If their ballot is challenged, they can request a provisional ballot and provide proof of citizenship by 5:00 PM on the second day after the election. For immediate assistance, the election protection lines are available: 866-OUR-VOTE (English) and 888-VE-Y-VOTA (Spanish). If there are any questions, it is advisable to consult with an election or immigration attorney.
Permanent residents, holders of I-220A or in a parole situation must not vote under any circumstances: doing so constitutes a federal crime punishable by up to one year in prison and immigration consequences that may include deportation, as illustrated by the cases of four Cubans accused of illegal voting among the 48 foreigners prosecuted by the DOJ in October.
The restriction that a federal judge imposed on DHS operations in nine states —upheld by the Ninth Circuit on October 30— expires at the close of polls this Tuesday, which leaves the legal landscape in a state of flux as voters head to the ballot boxes.
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