The Justice Department on Thursday asked a federal appeals court to step into its lawsuit against California, less than two weeks before the Nov. 3 midterm elections. The department wants the court to temporarily stop the state from counting mail-in ballots from more than 20,000 voters until their citizenship is verified 1.
The request went to the 9th U.S. Circuit Court of Appeals. Department lawyers called it an "unusual" move, Reuters reported 1.
Why the department went over the judge's head
The case is before U.S. District Judge David Carter. The department had asked him to rule on its emergency request by noon Thursday, and he had not done so 12.
The department says his silence amounts to a constructive denial of its request 1. In its filing, it acknowledged that Carter has not ruled 2. Democracy Docket, a voting-rights news site, noted that the appeal does not point to an actual denial order. It said it remains to be seen whether the appeals court accepts the department's framing 2.
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Carter has scheduled a hearing on the emergency request for "next week," Reuters reported. It did not give a date 1.
What the lawsuit claims
The lawsuit names California, Secretary of State Shirley Weber and Los Angeles County Registrar Dean Logan. It was filed about a week before the appeal 2. It relies on a federal criminal law, 18 U.S.C. § 611, which bars noncitizens from voting in federal elections 2.
The Trump administration says the voters in question are "likely not US citizens" 1. The department argued in a filing that "every minute" of continued ballot processing without setting aside those voters' ballots causes irreversible harm 2.
California pushes back
California and Los Angeles County have asked Carter to dismiss the case. They say the Justice Department lacks standing, meaning a legal right to sue. They also say it has no authority to use Section 611 to change how ballots are handled or counted 2.
California also argues that Congress expressly let the attorney general seek court orders under other federal election laws, but not under Section 611 2.
Weber said when the suit was filed: "Nowhere has the federal government clarified the basis for suspecting" the listed people are noncitizens 3. The federal government has not established that the roughly 20,000 people are ineligible or that any of them cast ballots 3.
Nowhere has the federal government clarified the basis for suspecting
Gov. Gavin Newsom, a Democrat, called the suit a "sad, desperate attempt" to suppress votes 3. Attorney General Rob Bonta, also a Democrat, accused the administration of promoting "conspiracy theories about widespread voter fraud that doesn't exist" 3.
What happens next
The 9th Circuit has not yet said whether it will act, and no court has ordered any ballots withheld 13. Carter's hearing next week comes just days before Election Day.
That matters because the department is asking a court to change how ballots are counted in the final days of a campaign. Reuters noted that states run elections, and that the administration is seeking more control over the contests that will decide control of Congress 1.
The pattern is worth watching. According to CBS News, as relayed by Straight Arrow News, the Justice Department had lost 26 earlier voter-roll cases without a win. Those cases sought registration records, while this one asks a court to block ballots from being counted 3.
The Record
- The Justice Department sued California, Secretary of State Weber and the Los Angeles County registrar over roughly 20,000 voters it suspects are noncitizens 3.
- California and Los Angeles County asked Judge David Carter to dismiss the case, and the Justice Department refiled its emergency request 2.
- The Justice Department filed a notice of appeal with the 9th Circuit after Carter missed its noon deadline to rule 12.
Sources
- Reuters, “Justice Department asks appeals court to intervene in California ballot case” (2026-10-22). yahoo.com/news/articles/justice-department-asks-appeals-cour
- Democracy Docket, “Trump DOJ appeals California ballot case before judge even rules” (2026-10-22). democracydocket.com/news-alerts/trump-doj-appeals-california
- Straight Arrow News, “Trump DOJ wants California to block ballots. The state disputes its evidence” (2026-10-16). san.com/cc/trump-doj-wants-california-to-block-ballots-the-s
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