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The fight over California disputed ballots went against the Justice Department again on Oct. 30, when a divided Ninth Circuit panel refused to order the state to set aside mail ballots cast by roughly 20,000 people the department says may not be U.S. citizens. The 2-1 order leaves California free to keep counting through the Nov. 3 election, and it is the third time in a week a federal court has turned the department away on the same demand.
The order is unsigned. Judges Mark J. Bennett, a Trump appointee, and Gabriel P. Sanchez, a Biden appointee, formed the majority, and Judge Patrick J. Bumatay dissented, according to the Associated Press and CBS News. The majority found the department had not carried its burden to show that an injunction pending appeal was warranted. Its central practical finding was blunt: “there is no feasible way to identify and segregate the ballots of specific individuals,” the court wrote, as quoted by AP. California officials say processed ballots can no longer be traced to individual voters, and hundreds of thousands have already been processed.
Three losses, three different grounds
Each ruling closed a different door. On Oct. 26 the same three-judge panel dismissed the department’s first appeal for lack of jurisdiction, CBS News reported, because the government had gone to the appeals court before the trial judge had a fair chance to rule. Two days later, U.S. District Judge David O. Carter in Los Angeles ruled on the merits and refused to make California hold the ballots, finding that a federal criminal ban on noncitizen voting does not give Washington control over how a state tallies votes. Friday’s order addressed the emergency relief the department sought while it appeals Carter’s ruling.
Denying an injunction pending appeal is not a final merits decision, but in an election case timing does most of the work. Once ballots are separated from their envelopes, a later win on the law would leave the department little to recover. The majority’s description of the request as “simple only in the abstract,” quoted by AP, signals that the panel saw the remedy itself, not just the legal theory, as the problem.
Bumatay’s dissent states the other side in its strongest form. He wrote that “the federal government has a sovereign interest in safeguarding federal elections,” according to AP. The administration’s position is that sorting out eligibility after the count is too late, because a noncitizen’s vote cannot be pulled back once it is mixed into the tally.
The list itself is now the real battleground
The bigger question for immigrants is how the 20,000 names were chosen, and DHS has declined to explain its method in detail. According to CBS News, the Justice Department said DHS compares voter rolls with internal agency data, uses third-party software and draws on Social Security Administration records. California officials call the list highly unreliable and say it likely includes many citizens. Washington’s secretary of state has raised the same objection to a smaller list of about 400 names sent to his state.
That dispute is likely to sharpen soon. Also on Oct. 30, a federal judge in Washington, D.C., ordered the department to share the California list with lawyers for the Coalition for Humane Immigrant Rights and the UCLA Voting Rights Project, AP reported, which would be the first time anyone outside government gets to test it. A known weakness of this kind of data matching is that immigration records capture status at a point in time, so people who naturalize later can still appear in agency data as noncitizens. If outside review finds many naturalized citizens on the list, the case against using it grows; if the list holds up, the administration’s claim gains support.
For green card holders, the civil case was never the main risk. Voting by a noncitizen can lead to criminal charges and removal and can derail a later citizenship application, and federal prosecutors in Los Angeles have served grand jury subpoenas on the county election office. Bill Essayli, the top federal prosecutor in Los Angeles, warned that any official who knowingly processes a noncitizen’s ballot is “opening themselves to legal jeopardy,” AP reported. At least three county officials have been asked to appear before a grand jury on Nov. 4, the day after the election, according to AP.
Dates to watch
- Nov. 3: Election Day; California continues processing mail ballots under state law.
- Nov. 4: Scheduled grand jury appearances by Los Angeles County election officials, per AP.
- Coming weeks: Whether the department seeks emergency relief from the full Ninth Circuit or the Supreme Court, what outside review of the list shows, and a pending ruling in the Washington, D.C., noncitizen voting case.
This article is for general information and is not legal advice.
Sources
- Associated Press, “Appeals court rejects Justice Department request for California to set aside disputed ballots” (Oct. 30, 2026)
- CBS News, “Appeals court rejects DOJ bid to set aside disputed California ballots” (Oct. 30, 2026)
- CBS News, “Appeals court dismisses DOJ’s request to force California to set aside ballots” (Oct. 26, 2026)
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