California Ballot Lawsuit: DOJ Appeals to Ninth Circuit

The Justice Department has taken its California ballot lawsuit to the Ninth Circuit without waiting for the trial judge to rule, arguing that the judge’s silence amounts to a refusal.

The California ballot lawsuit, in which the Justice Department wants mail ballots from about 20,000 voters it calls likely noncitizens set aside before they are counted, reached the U.S. Court of Appeals for the Ninth Circuit on Oct. 22 before any judge had decided it. In a two-page notice of appeal, the department told the U.S. District Court for the Central District of California that “the Court’s silence is a constructive denial” of its emergency request, and it appealed that unwritten ruling. U.S. District Judge David O. Carter, who has the case, had already scheduled a hearing on the request for Oct. 27.

The reason for the rush is that ballots are being opened now. The department’s own Oct. 21 filing says Los Angeles County had already processed more than 331,000 vote-by-mail ballots, and it quotes the county registrar’s sworn statement that once a ballot is removed from its return envelope, “there is no way to associate the voter with that ballot.” Each day makes the relief the government wants harder to deliver, and the same fact sits at the heart of the county’s position that it cannot do what Washington asks.

From complaint to appeal in a week

The department filed suit on Oct. 15, after giving the state 48 hours to segregate the ballots. It filed an emergency application for a temporary restraining order on Oct. 19, refiled it on Oct. 21 and the same day asked for a ruling “by noon on October 22, 2026.” When none came, the notice of appeal followed that afternoon. California and Los Angeles County have asked Carter to dismiss the case outright, and Talking Points Memo reported that the department filed yet another application on Oct. 23 seeking an order to hold the ballots while the appeal is pending.

Both sides have framed the stakes sharply. “We’re not asking to cancel anyone’s vote,” Bill Essayli, the first assistant U.S. attorney for the Central District of California, told KABC, the ABC station in Los Angeles, adding that if the case is dismissed, “this is the first court they’re going to, not the last.” California Attorney General Rob Bonta called the suit “meritless” and described the federal approach as “guilty until proven innocent.” Carter is no stranger to the dispute: in January he threw out a separate Justice Department suit seeking California’s voter registration data, calling its demands “unprecedented and illegal,” KABC reported.

Can a party appeal a ruling that does not exist? Only in narrow circumstances. Federal appeals courts generally hear final judgments, but 28 U.S.C. 1292(a)(1) allows immediate appeals of orders “refusing” injunctions, and the Supreme Court in Carson v. American Brands (1981) extended that to orders that have the practical effect of refusing one when the consequences are serious and perhaps irreparable. Courts have occasionally treated prolonged inaction that way. A judge who set a hearing six days after a refiled application is in a different position, and the open question is whether the Ninth Circuit sees that schedule as a denial at all. If it does not, the likely result is a dismissal for lack of jurisdiction, leaving the fight where it started, in Carter’s courtroom on Oct. 27.

Why naturalized citizens are watching the California ballot lawsuit

For immigrant communities, the list itself matters more than the maneuver. The flagged voters were identified by checking registrations against immigration records, which capture status at a point in time. A green card holder who later naturalized, or a child who became a citizen automatically through a parent, can look like a noncitizen in those files. Los Angeles County’s own sample of the list turned up voters whose records showed a U.S. birthplace.

Scale matters too. California has more than 23 million registered voters, the Associated Press reported, so the roughly 20,000 flagged names amount to less than one-tenth of 1 percent of the rolls, based on those two figures. Criminal cases are moving separately: prosecutors charged 28 California green card holders on Oct. 19, and the department has warned county election officials about counting ineligible ballots.

The calendar cuts both ways. Federal courts usually avoid changing election procedures close to Election Day, a principle traced to Purcell v. Gonzalez (2006). The government can argue that only an order now preserves the status quo; California can answer that a court-built system for pulling 20,000 ballots days before the vote is exactly the late change that principle discourages.

Dates to track

Ninth Circuit: whether the court dockets the appeal, orders a response or dismisses it for lack of a ruling to review.
Oct. 27, 1 p.m.: hearing before Judge Carter on the restraining order request, with the state’s dismissal motions pending.
Nov. 3: Election Day; California counts mail ballots postmarked by then and received within seven days.

This article is for general information and is not legal advice.

Sources

Vasanth Vaidyanathan, Esq.

Administrator

Vasanth Vaidyanathan is an immigration attorney with over 20 years of experience focused exclusively on U.S. immigration and nationality law. He holds a LL.M. from California Western School of Law, San Deigo and advises individuals and businesses on employment and family-based immigration matters, including H-1B, PERM, EB categories, and adjustment of status. He has also been a featured speaker at immigration seminars across the U.S. To reach Vasanth visit: https://www.vnathan.com/

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