Appeals court dismisses DOJ bid to set aside California ballots a week before midterms

A federal appeals court on Monday dismissed the Justice Department's effort to force California election officials to set aside thousands of ballots it suspects came from noncitizens. The ballots stay in the count, one week before the Nov. 3 midterm elections ¹.

The U.S. Court of Appeals for the 9th Circuit ruled 2-1 that it lacked jurisdiction over the appeal. It granted a motion from Los Angeles County's top elections official to dismiss it ¹. Judges Mark Bennett and Gabriel Sanchez formed the majority. Judge Patrick Bumatay dissented ¹.

The majority said the government did not give a federal district court "adequate opportunity" to consider its request for temporary relief ¹. It also faulted the Justice Department for suing less than three weeks before the election, and for asking for a temporary restraining order only last week, after California was already processing ballots ¹.

The United States's claimed emergency, at least in part, is a self-constructed one

How the case got here

Earlier this month, Acting Deputy Attorney General Trent McCotter sent letters to California's secretary of state and to Dean Logan, Los Angeles County's top election official. The letters gave them 48 hours to review a list of more than 20,000 registered voters the administration believes are "likely" noncitizens ¹. The Justice Department sued on Oct. 15, asking a judge to order the ballots set aside and the voters' citizenship checked before counting ¹².

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Judge David O. Carter had set a hearing for Tuesday afternoon. The next day, the Justice Department appealed anyway, arguing his "silence" amounted to a "constructive denial" of its request ¹.

California officials said the suit does not allege that those people will vote unlawfully. Los Angeles County said it reviewed a sample of 200 records from the list. It found 112 matched voter registrations that were canceled or inactive, so no ballot was mailed to those people ¹. Most in the sample had never voted, and more than one-quarter listed a U.S. birthplace, a county official said ¹.

California Secretary of State Shirley Weber, a Democrat, earlier said she would not strip residents of voting rights over claims that are "unsupported and likely inaccurate" ². Federal law and California law both bar noncitizens from voting ¹.

The dissent and the reaction

Bumatay, a Trump appointee, wrote that the federal government has a "sovereign interest in safeguarding federal elections." Bennett, also appointed by President Trump, wrote separately that he would have rejected the Justice Department's request even on the legal merits ¹.

Gov. Gavin Newsom, a Democrat, called the ruling a "positive development and a welcome speed bump" in what he described as Trump's attacks on the Constitution and the country's democracy ¹.

What happens next

The Justice Department could ask the full 9th Circuit to reconsider. The panel gave it until 7 p.m. local time to do so ¹. Federal prosecutors also sent letters Friday to at least 18 other California county registrars with similar lists and demanded ballots be set aside ¹.

That matters because Los Angeles County alone has already processed an estimated 550,000 mail ballots, according to court filings ¹. NPR reported that the Justice Department has lost 26 of 26 cases in which a court ruled on its attempts to get nonpublic voter roll data ². The Constitution's Elections Clause gives states the power to set the "times, places and manners" of congressional elections unless Congress steps in ¹.

The Record

1. Oct 15, 2026The Justice Department sued California, Secretary of State Shirley Weber and Dean Logan over mail ballots of suspected noncitizens ¹².
2. Oct 23, 2026Federal prosecutors sent letters to at least 18 more California county registrars demanding ballots be set aside ¹.
3. Oct 26, 2026The 9th Circuit dismissed the Justice Department's appeal 2-1 for lack of jurisdiction ¹.

Sources

1. CBS News, “Court dismisses DOJ's request to force California to set aside ballots” (2026-10-26). cbsnews.com/news/appeals-court-dismisses-doj-trump-californi
2. NPR (via KUNC), “DOJ sues California to block the counting of mail-in ballots from alleged noncitizens” (2026-10-16). kunc.org/2026-10-16/doj-sues-california-to-block-the-countin

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