Voting Rights · Report · File No. 261030-586
Ninth Circuit rejects DOJ bid to make California set aside 20,000 mail ballots
A split appeals panel said it lacked jurisdiction and sent the Trump administration's emergency request back to a district judge. For now, California keeps counting ballots under its normal rules a few days before the midterms.
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A federal appeals court has turned down the Trump administration's emergency request to make California separate about 20,000 mail ballots before the midterm election. The 2-1 ruling came Monday, Oct. 26, from a three-judge panel of the U.S. Ninth Circuit Court of Appeals in San Francisco 12.
The Justice Department wanted California to set aside ballots from people it says are likely noncitizens and hold them uncounted until citizenship was verified. It filed suit Oct. 15 in federal court in Los Angeles 2.
What the court said
The panel said it lacks jurisdiction at this stage and sent the case back to the district court 1. The ruling said the Justice Department "failed to give a lower court judge an adequate opportunity" to consider the case first 2.
Judges Mark Bennett, a Trump appointee, and Gabriel Sanchez, a Biden appointee, formed the majority. Judge Patrick Bumatay, also a Trump appointee, dissented 1. The majority wrote that the government's "claimed emergency, at least in part, is a self-constructed one" 1.
Sanchez wrote separately that the government "asks the federal court to dictate to a state legislature a matter squarely within the state's traditional domain" 2. The ruling is procedural. It does not decide whether any listed voter is a noncitizen.
Who said what
California Attorney General Rob Bonta, a Democrat, called the ruling "a welcome speed bump to Trump's disgusting attacks" on the Constitution and democracy 2. California Secretary of State Shirley Weber's lawyers had called the lawsuit "a reckless political stunt" 2.
California says its safeguards against noncitizen voting are strong and calls the federal data "suspect" 2. Los Angeles officials reviewed 200 names from the list. They said nearly 40% indicated they were born in the U.S., and 71.2% of the records had no voting history 1.
Justice Department lawyers argued the state's handling of ballots gets in the way of federal enforcement of the law barring noncitizen voting 1. Bill Essayli, the first assistant U.S. attorney, told the district court, "We have not asked to void any ballots" 3.
What happens next
The case went back to U.S. District Judge David O. Carter, who heard arguments Tuesday, Oct. 27. He said he was considering a special master, an independent reviewer, to test both sides' claims. He said deciding quickly would be too rushed 3.
More than 3 million ballots had already been returned, and the state says they cannot be separated once returned 3. Carter told the government, "You got a remedy for goodness sakes — go out and indict" 3. California's deadline to certify results is Dec. 11 3.
That matters because the request would have changed how votes are counted in the middle of an election. Voters on a disputed list could have had their ballots held back before anyone proved the list was right. The court has not yet ruled on the merits, so the fight is not over.
The Record
- The Justice Department sued California in federal court in Los Angeles, asking that ballots tied to about 20,000 listed voters be separated and not counted until citizenship was verified 2.
- A 2-1 Ninth Circuit panel rejected the Justice Department's emergency request, saying it lacked jurisdiction at this stage 12.
- Judge David O. Carter heard arguments in Los Angeles and said he was weighing a special master 3.
Sources
- ABC News, “Appeals court declines to step in on Trump administration's California voting case” (2026-10-26). abcnews.com/Politics/appeals-court-rejects-trump-admins-voti
- NBC News, “Appeals court hands Trump administration setback in push to block California votes by alleged noncitizens” (2026-10-26). nbcnews.com/politics/2026-election/trump-administration-lose
- News4JAX, “Judge to consider whether California should count 20,000 ballots disputed by Trump administration” (2026-10-27). news4jax.com/news/politics/2026/10/27/judge-to-consider-whet
Found an error? Tell the newsroom. Corrections are noted at the top of the story.
More from the files
Appeals judges, two named by Trump, doubt DOJ bid to hold 20,000 California ballots
In a rare Sunday hearing, a federal appeals court panel questioned the Justice Department's request to set aside mail ballots it says came from likely noncitizens. More than 3 million Californians have already voted, and a trial judge takes up the case Tuesday.
DOJ asks appeals court to act before judge rules on blocking 20,000 California ballots
The Justice Department went to the 9th Circuit on Oct. 22, before a district judge ruled, asking it to stop California from counting mail ballots from more than 20,000 voters it says may not be citizens. California says the government has not shown who those voters are or that any of them voted.
Appeals court dismisses DOJ bid to set aside California ballots a week before midterms
A 2-1 federal appeals court ruling leaves in the count ballots the Justice Department suspects came from noncitizens. The panel called the government's emergency partly "self-constructed."
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