Voting Rights · Report · File No. 261029-646
DOJ appeals ruling that lets California count ballots it says came from noncitizens
The Justice Department asked the 9th Circuit for a fast ruling after a judge refused to make California set aside up to 20,000 ballots. Millions of votes are already in, and Election Day is Tuesday.
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The Justice Department has asked a federal appeals court to step in after a judge refused to make California set aside the ballots of up to 20,000 people. The department says those people are likely noncitizens. The request went to the 9th Circuit Court of Appeals in a late Wednesday filing 1.
The department told the court a quick ruling is essential because of "irreversible ballot processing occurring on an ongoing basis." 1 The filing came hours after U.S. District Judge David O. Carter issued a sharp order against the request 1.
What the judge said
Carter was appointed by President Bill Clinton, a Democrat. He wrote that the demand violated a federal election law that bars changes to voter rolls or election procedures within 90 days of an election 1. He said separating the ballots now could disenfranchise citizens and "wreak havoc" on certifying the results 1.
Both sides agree the department's list includes some citizens, though not how many 1. Carter said the government's citizenship-checking process "raises significant concerns," CBS News reported 2. He also noted that federal prosecutors can still bring criminal cases against noncitizens who vote illegally 1.
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Constitutional rights and our democracy are at stake. The public interest favors their protection.
Carter has not yet ruled on the department's renewed request for a preliminary injunction. That would bar California from counting the ballots until the lawsuit is resolved 1.
The state's case and the numbers
Over 500,000 votes have already been processed in Los Angeles County alone, according to court filings. Once a vote is processed, it cannot be traced back to the voter 1. California has more than 23 million registered voters, and over 3.5 million mail ballots had been returned statewide, CBS reported 2.
County lawyers said it would be "impossible" to separate the ballots in time. Los Angeles County also said only just over 7,000 of the 20,000 records had county addresses. In a 200-record sample, more than half were canceled or inactive, so no ballot was mailed 2.
Bill Essayli, the top federal prosecutor in Los Angeles, said the situation "disenfranchises American citizens through dilution." He stressed that the administration is not seeking to void any ballots 2.
Trump's reaction and what comes next
President Donald Trump criticized the ruling before a South Carolina rally. "California is very corrupt. The elections are extremely corrupt." He claimed without evidence that there are "millions, in my opinion" of "bad ballots" in the state 1. Available data indicates noncitizen voting is exceedingly rare 1.
This will be the second time the 9th Circuit has looked at the case. Last week a panel ruled it was premature for an appeals court to get involved. Two of the three judges wrote that they would not support setting aside ballots this late 1. One judge dissented 1. It is not clear whether the same three judges will hear the new appeal 1.
That matters because the clock is nearly out. Counting continues daily, and any order that arrives after ballots are mixed in may be hard to carry out. The pattern is a late push to change election handling in a state with millions of votes already cast. The Justice Department has made similar demands in other states, including Washington 1.
The Record
- A 9th Circuit panel ruled 2-1 to dismiss the Justice Department's first emergency appeal as premature 2.
- Judge David O. Carter rejected the request to make California set aside ballots tied to up to 20,000 alleged noncitizens 12.
- The Justice Department filed a late-evening appeal asking the 9th Circuit to rule as soon as possible 1.
Sources
- ABC News (AP), “Justice Department appeals ruling allowing California to count disputed ballots” (2026-10-29). abcnews.com/Politics/wireStory/justice-department-appeals-ru
- CBS News, “Judge rejects Trump administration's push to force California to set aside thousands of mail ballots” (2026-10-28). cbsnews.com/news/judge-rejects-trump-california-mail-ballots
Found an error? Tell the newsroom. Corrections are noted at the top of the story.
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