Ninth Circuit Panel Votes 2-1 to Deny Justice Department Bid to Set Aside California Mail Ballots of About 20,000 Flagged Voters
The Friday ruling was the administration's second appeals-court loss this week on the issue. It leaves in place a district judge's refusal to order the ballots set aside before the Nov. 3 midterms, and the Justice Department may now turn to the Supreme Court.
About 20,000 Names, and the Ballots That Keep Moving
On Friday, Oct. 30, a three-judge panel of the Ninth Circuit voted 2-1 against the Justice Department. The department wanted California to set aside mail ballots from about 20,000 registered voters. The Trump administration says those voters are likely noncitizens[1][2].
Election Day is Tuesday, Nov. 3. The ruling was the second time that week the panel turned the department away[5][6].
Judges Mark Bennett and Gabriel Sanchez made up the majority. Judge Patrick Bumatay dissented[1][3]. Bennett and Bumatay were both appointed by Trump, and Sanchez by Biden. So the two Trump appointees landed on opposite sides[1][3].
How the Case Got Here
The Justice Department sued California on Oct. 15. The Department of Homeland Security had built a list of more than 20,000 registered voters flagged as likely noncitizens[2][10]. The department asked the state to verify each name or keep those voters' ballots separate[2].
On Oct. 26, the same panel dismissed DOJ's first emergency appeal. It said it lacked jurisdiction because the trial judge hadn't yet ruled[5][6].
On Oct. 28, U.S. District Judge David O. Carter, a Clinton appointee, denied DOJ's request for a temporary restraining order. That is a short-term court order meant to freeze a situation until a judge can hear the full case[4][1][12]. Carter warned that setting the ballots aside would "wreak havoc and disrupt the election that is already underway"[18].
Friday's order covered DOJ's appeal of that ruling. The department had asked for an injunction pending appeal. That is a temporary order that changes the status quo while an appeal moves forward. To win one, a party generally has to show it will likely win. It must also show harm that can't be undone, and that the balance of harms and the public interest favor it. The majority found DOJ hadn't met that burden[1].
This isn't a final ruling on whether the list is accurate.
Why Every Day Counts
The Justice Department's case rests on a practical point. Once a mail ballot is separated from its signed envelope, no one can tell whose ballot it was. So the remedy only works if ballots are pulled before they're processed[7][2][3].
Both sides agree on the law. Federal law bars noncitizens from voting in federal elections. The Justice Department and California officials both say so[15][8].
Assistant Attorney General Harmeet Dhillon put DOJ's view this way. The only question, she said, "is simply how many of them there are"[15]. She rejects the charge that DOJ is stirring up doubt: "It's not to sow distrust. The distrust is there"[15].
Bumatay's dissent made the case directly. If California "mixes them with legitimate ballots," he wrote, "the potentially illegal votes will be counted toward the election of our representatives — threatening to dilute the vote of eligible citizens." He called setting the ballots aside "a modest remedy"[7].
Federal prosecutor Bill Essayli said California told the court it does nothing on its own to check voters' citizenship. "Every day, more ballots are processed by election officials," he wrote[2].
Who Runs the Election
California's answer starts with the Constitution. Article I, Section 4 is known as the Elections Clause. It lets each state set the "times, places and manner" of congressional elections. Congress can change those rules by passing laws. The clause doesn't give that role to the executive branch[3].
The majority wrote: "We decline the United States's invitation to contravene the Elections Clause by undermining the Constitution's plain text"[3]. DOJ's side counters that the ban on noncitizen voting already exists. In its view, enforcing it rewrites nothing. For now, the majority has sided with California's reading[3].
California also says DOJ never proved the people on the list are noncitizens. It says it got too short a deadline to respond[2]. Carter found the list not credible. The appeals majority didn't dispute that finding[2].
The majority shared the practical worry. It warned that the proposed restrictions could disenfranchise eligible voters and jeopardize California's ballot-counting process[13].
Attorney General Rob Bonta, a Democrat, says the rulings show the administration has "zero authority to interfere in California's elections." He also warned in a court filing: "This litigation is a precursor to further interference here in California"[8]. Democratic state leaders have a political interest in resisting federal moves they see as aimed at a Democratic state[8]. State officials also have a plain institutional interest in keeping control of their own elections.
What the 20,000 Does and Doesn't Mean
The 20,000 figure counts registered voters flagged by DHS[10]. It doesn't count ballots actually returned. So the number of ballots at stake is likely smaller, and it hasn't been made public. Courthouse News put it at "as many as 20,000 possible ballots"[1].
No court has found that anyone on the list voted illegally in this election. Carter found the list not credible[2]. Election officials have said many flagged registrations appear to belong to U.S. citizens. Citizens flagged by mistake could see their votes delayed or lost[9].
The list may now face its first outside check. Also on Friday, Chief U.S. District Judge James E. Boasberg in Washington ordered DOJ to hand it to two groups. They are the Coalition for Humane Immigrant Rights and the UCLA Voting Rights Project[9]. Carter has said he plans to appoint a special master. That is a neutral expert who reports to the court. The special master would look into how DOJ built the list[14].
Meanwhile, California counties keep processing mail ballots on their normal schedule[1].
Same Ruling, Different Headlines
The Associated Press said "disputed ballots" and named the Justice Department, with few loaded words[11]. Al Jazeera ran a straight account with the panel's split and the judges' appointing presidents up top. Its headline, "again rejects Trump bid," frames the story as a personal setback for the president[3].
Right-leaning outlets reported the loss but stressed that the fight isn't over. Breitbart's headline on the Oct. 26 ruling said "Noncitizen Ballots," dropping "likely." No court has found that any of these ballots came from noncitizens[19]. The Blaze kept "likely" but added "but it's not over"[20]. RedState framed the loss as a step toward the Supreme Court[16].
Left-leaning outlets leaned on the other side of the record. Democracy Docket, founded by Democratic election lawyer Marc Elias, said DOJ tried to "block" ballots. DOJ asked for them to be set aside until verified[17]. Bonta counted three losses for the administration in a week[8].
What Comes Next
The administration can ask the Supreme Court or the full Ninth Circuit to step in[2]. Coverage suggests DOJ may want a high-court ruling on how far federal power reaches into state-run elections[16][17]. A win would let it hold ballots in the nation's largest state. A loss would come days before the vote.
Two questions are still open. One is whether the list holds up once outside groups and a special master examine it[9][14]. The other is whether any court will order ballots pulled before Tuesday.
Summary
On Friday, Oct. 30, a federal appeals court again refused to make California set aside mail ballots from about 20,000 registered voters. The Trump administration says those voters are likely noncitizens[1][2]. A three-judge panel of the U.S. Court of Appeals for the Ninth Circuit split 2-1[1]. Judge Mark Bennett, a Trump appointee, and Judge Gabriel Sanchez, a Biden appointee, formed the majority. Judge Patrick Bumatay, also a Trump appointee, dissented[1][3]. Election Day is Tuesday, Nov. 3.
The majority said the Justice Department had not met its burden for an emergency order[1]. It wrote: "We decline the United States's invitation to contravene the Elections Clause by undermining the Constitution's plain text"[3]. The ruling leaves in place an Oct. 28 decision by U.S. District Judge David O. Carter, who refused to order the ballots set aside[4][1]. It was the second time this week the panel turned DOJ away. On Monday, Oct. 26, it dismissed an earlier emergency appeal. It said it lacked jurisdiction because Carter had not yet ruled[5][6]. The administration can now ask the Supreme Court or the full Ninth Circuit to step in[2].
The core dispute is who may police a federal election, and on what evidence. The Justice Department says federal law bars noncitizens from voting. In its view, setting suspect ballots aside is a modest way to keep them from being mixed in and counted[7]. California says the list is unproven. It also says the Constitution gives states, not federal prosecutors, the power to run elections. In California's view, a court order to pull ballots would disrupt the election and cost eligible citizens their votes[2][8]. Carter found the list not credible, and the appeals majority did not dispute that finding[2]. Also on Friday, a separate federal judge in Washington ordered DOJ to give the list to an immigrant-rights group and the UCLA Voting Rights Project so they could check it[9].
The Event
On Friday, Oct. 30, 2026, a Ninth Circuit panel voted 2-1 to deny the Justice Department's request for an injunction pending appeal[1][10][11]. That order would have required California election officials to set aside the mail ballots of about 20,000 registered voters on a federal 'likely noncitizen' list[1][10]. Judges Mark Bennett and Gabriel Sanchez issued the unsigned order, and Judge Patrick Bumatay dissented[1]. The same day, Chief U.S. District Judge James E. Boasberg in Washington, D.C., ordered DOJ to give the list to lawyers for the Coalition for Humane Immigrant Rights and the UCLA Voting Rights Project by the end of the day[9].
Undisputed Facts
- The Justice Department sued California on Oct. 15 over a list of more than 20,000 registered voters that federal agencies had flagged as likely noncitizens. It asked the state to verify each name or keep those voters' ballots separate[2].
- The U.S. Department of Homeland Security built the list[10].
- On Oct. 26, the same Ninth Circuit panel dismissed DOJ's first emergency appeal for lack of jurisdiction. At that point the district judge had not yet held a hearing on DOJ's request[5][6].
- On Oct. 28, U.S. District Judge David O. Carter, a Clinton appointee, denied DOJ's request for a temporary restraining order to stop the processing of the ballots[4][1][12].
- On Oct. 30, Judges Bennett (a Trump appointee) and Sanchez (a Biden appointee) denied DOJ's appeal of Carter's ruling. Judge Bumatay (a Trump appointee) dissented[1][3][13].
- Carter has said he plans to appoint a special master, a neutral expert who reports to the court, to look into how DOJ built the list[14].
- On Oct. 30, Chief Judge James E. Boasberg in Washington ordered DOJ to share the list with the Coalition for Humane Immigrant Rights and the UCLA Voting Rights Project[9].
- Federal law bars noncitizens from voting in federal elections. The Justice Department and California officials both say so[15][8].
The Pressure
Strip away the moralizing and blame. What structural realities persist regardless of which narrative wins?
- Ballots cannot be un-mixed
- In a secret-ballot system, a mail ballot is separated from its signed envelope during processing. After that, no one can tell whose ballot it was. So DOJ's remedy only works if ballots are pulled before they are processed. That is why DOJ sees each day as lost ground. It is also why California and the court majority see a last-minute order as a threat to the whole count[7][2][3].
- Elections Clause: states set the rules, Congress can override
- Article I, Section 4 of the Constitution lets each state set the 'times, places and manner' of congressional elections. Congress may change those rules by passing laws. The clause does not give that role to the executive branch. California reads this to mean DOJ cannot use the courts to rewrite state counting rules. DOJ's side says federal law already bans noncitizen voting, so enforcing that ban rewrites nothing. For now, the majority has sided with California's reading[3].
- The bar for emergency relief is high
- An injunction pending appeal is a temporary order that changes the status quo while an appeal moves forward. To get one, a party generally must show it will likely win. It must also show harm that cannot be undone, and that the balance of harms and the public interest favor it. The majority found that DOJ fell short[1]. That is not a final ruling on whether the list is accurate.
- The list has not been tested in public
- No court has found that anyone on the roughly 20,000-name list voted illegally in this election. Carter found the list not credible[2]. Outside groups are now due to receive it[9], and a special master is set to review how it was built[14].
Material realityCalifornia counties keep processing mail ballots as usual. That includes ballots returned by people on the list. The figure of about 20,000 counts registered voters flagged by DHS[10], not ballots actually returned. So the number of ballots at stake is likely smaller, and it has not been made public. Courthouse News put it at 'as many as 20,000 possible ballots'[1]. Election Day is Nov. 3. The administration's remaining options are the Supreme Court or the full Ninth Circuit[2].
Narrative as a weaponThe administration and right-leaning outlets want readers to see a state counting illegal votes and refusing to check them. They stress Bumatay's dissent and Essayli's claim of a 'stunning admission'[2][7]. California officials and left-leaning outlets want readers to see a federal power grab built on a list a judge called not credible. They stress three court losses in a week[8][17]. Each camp blurs one key word. Some right-leaning headlines drop 'likely' from 'likely noncitizens'[19], and others point to the next round rather than the ruling[20]. Some left-leaning headlines say DOJ tried to 'block' ballots, when it asked for them to be set aside[17]. The panel's makeup also cuts against a simple party story: the two Trump appointees came down on opposite sides[1].
How Each Side Sees It
Each major actor’s view — how it frames things, its underlying incentive, and how it’s materially affected. Tap a side to read it.
Frames it asNoncitizens may not vote in federal elections. So the only real question, as Assistant Attorney General for Civil Rights Harmeet Dhillon put it, "is simply how many of them there are"[15]. DOJ's request was to hold the ballots until eligibility could be checked, not to destroy them. Once a mail ballot is mixed in with the rest, it cannot be pulled back out. That is why DOJ says every day matters. Judge Bumatay's dissent makes the case directly. If California "mixes them with legitimate ballots," he wrote, "the potentially illegal votes will be counted toward the election of our representatives — threatening to dilute the vote of eligible citizens"[7]. He called setting the ballots aside "a modest remedy"[7]. Federal prosecutor Bill Essayli said California told the court it does nothing on its own to check voters' citizenship. "Every day, more ballots are processed by election officials," he wrote[2]. Dhillon rejects the charge that DOJ is stirring up doubt: "It's not to sow distrust. The distrust is there"[15].
WhyTo show that noncitizen voting happens and can be caught, and to set a precedent for federal oversight of state voter rolls. Coverage suggests DOJ may also want a Supreme Court ruling on how far federal power reaches into state-run elections[16][17].
Impact on themBonta counts three court losses for the administration in a week[8]. A Supreme Court appeal risks a high-profile loss days before the vote. A win would let DOJ hold ballots in the nation's largest state. DOJ must also now hand the list to outside groups who will check its accuracy[9].
Frames it asThe Constitution's Elections Clause gives states the power to run congressional elections. Congress can change those rules, but federal prosecutors cannot[3]. California says DOJ never proved that the people on the list are noncitizens. It also says it got too short a deadline to respond[2]. Attorney General Rob Bonta, a Democrat, says the rulings show the administration has "zero authority to interfere in California's elections"[8]. In a court filing, he warned: "This litigation is a precursor to further interference here in California"[8]. The majority shared the practical worry. It warned that the proposed restrictions could disenfranchise eligible voters and jeopardize California's ballot-counting process[13].
WhyTo keep control of the state's own election process. Democratic state leaders also have a political interest in resisting federal moves they see as aimed at a Democratic state[8].
Impact on themCounties can keep processing mail ballots on their normal schedule[1]. They still face the special master's review and a possible Supreme Court appeal[14][2].
Frames it asGroups such as the Coalition for Humane Immigrant Rights and the UCLA Voting Rights Project sought the list so they could see who is on it and how it affects eligible voters. Election officials have said many of the flagged registrations appear to belong to U.S. citizens, and citizens flagged by mistake could see their votes delayed or lost[9]. Carter found the list not credible[2].
WhyTo protect naturalized citizens and other eligible voters from being wrongly flagged, and to test the federal data in public for the first time[9].
Impact on themTheir ballots now go through the normal count unless the Supreme Court steps in[2]. The groups are set to receive the list under Boasberg's order[9].
Frames it asThe majority found that DOJ had not cleared the high bar for emergency relief[1]. In its view, granting relief would mean a federal court overriding the states' power under the Elections Clause[3]. In its earlier ruling, the panel said DOJ came to the appeals court before the trial judge had a chance to act[1][5]. Carter warned that setting the ballots aside would "wreak havoc and disrupt the election that is already underway"[18].
WhyTo decide the case on the record before them, and to avoid changing election rules days before a vote[1][18].
Impact on themThe two Trump appointees came down on opposite sides. That makes the ruling hard to cast as a party-line result[1]. The fight over whether the list is accurate now moves to Carter's special master and to Boasberg's courtroom[14][9].
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The same story, as framed by outlets across the spectrum, ordered least to most biased. The bias score (1 = straight, 10 = heavily spun) is an AI assessment of that framing — click an outlet to see its track record. The tell is the word choice or omission that reveals the angle.
| Outlet | Vantage | Bias | How they frame it | The tell |
|---|---|---|---|---|
| Associated Press | U.S. center | 2 | Appeals court rejects Justice Department request for California to set aside disputed ballots | It says 'disputed ballots' and names the agency, the Justice Department, rather than Trump. It uses few loaded words. |
| Al Jazeera | Qatari | 3 | US appeals court again rejects Trump bid to set aside California ballots | 'Trump bid' pins the case on the president personally. Otherwise it gives the panel's makeup and the dissent evenly. |
| The Hill | U.S. center | 3 | Federal appeals court rejects Trump administration's California ballots argument | Early in the story, it reports that the majority 'didn't dispute' the lower court's finding that the list isn't credible. That point is accurate, and putting it high gives it weight. The story also carries Essayli's 'stunning admission' charge. |
| RedState | U.S. right | 5 | It Looks Like the Dispute Over 20,000 'Likely Noncitizens' on CA's Voter Rolls Is Going to SCOTUS | It keeps 'likely' in quotation marks, but it frames the loss as a step toward the Supreme Court. The ruling itself comes second. |
| Democracy Docket | U.S. left | 5 | Appeals court again rejects DOJ's bid to block some California ballots, setting up Supreme Court showdown | 'Block' suggests DOJ wanted the ballots thrown out. DOJ asked for them to be set aside until verified. The outlet was founded by Democratic election lawyer Marc Elias. |
| The Blaze | U.S. right | 5 | 9th Circuit denies Trump DOJ's demand for California to set aside likely noncitizen ballots — but it's not over | It keeps 'likely,' but the tag 'but it's not over' points readers toward a hoped-for next round. |
| Breitbart | U.S. right | 7 | Ninth Circuit Won't Order California to Set Aside Noncitizen Ballots | Its headline on the Oct. 26 ruling says 'Noncitizen Ballots' with no 'likely' or 'suspected,' treating an unproven list as fact. No court has found that any of these ballots came from noncitizens. |
References
- Ninth Circuit puts kibosh on Trump bid to sequester California ballots — Courthouse News Service · Independent legal-news service focused on court records; subscriber-funded
- Federal appeals court rejects Trump administration's California ballots argument — The Hill · Commercial D.C. political outlet owned by Nexstar; generally center
- US appeals court again rejects Trump bid to set aside California ballots — Al Jazeera · Qatari state-funded international broadcaster
- Judge denies the Justice Department's bid to stop processing California ballots — NPR · Nonprofit broadcaster funded by public money and donors; center to center-left reputation
- Appeals court dismisses DOJ's request to force California to set aside ballots — CBS News · Commercial network news (Paramount Skydance); center
- Order, No. 26-7070 (Oct. 26, 2026) — U.S. Court of Appeals for the Ninth Circuit · Primary source: federal court record
- Trump-Appointed Judge Dissents, Warning Illegal Votes "Will Be Counted Toward the Election of Our Representatives" — 2paragraphs · Small news-summary site; ownership and orientation unclear
- Trump loses appeals over California ballots, Homeland Security operations — States Newsroom (News From the States) · Nonprofit state-news network funded by foundations and donors; generally center-left
- Judge orders Trump administration to hand over list of alleged noncitizen voters — NBC News · Commercial network news (Comcast/NBCUniversal); center
- Court denies DOJ request to set aside ballots from 20,000 California voters — Axios · Commercial digital outlet owned by Cox Enterprises; center
- Appeals court rejects Justice Department request for California to set aside disputed ballots — Associated Press (via PBS NewsHour) · Nonprofit news cooperative wire; center
- Judge rejects DOJ request to block California from immediately counting ballots linked to alleged noncitizens — Fox News · Right-leaning commercial network (Fox Corp.)
- Appeals court rejects DOJ request to have California set aside disputed ballots — CBS News · Commercial network news (Paramount Skydance); center
- Judge to appoint special master in California voting case in setback to DOJ's attempt to quickly intervene — ABC News · Commercial network news (Disney); center
- DOJ's Harmeet Dhillon: We're Not Sowing Distrust In Elections, The Distrust Is There — RealClearPolitics · Center-right aggregator; this item is a video of a DOJ official's own remarks
- It Looks Like the Dispute Over 20,000 'Likely Noncitizens' on CA's Voter Rolls Is Going to SCOTUS — RedState · Conservative blog owned by Salem Media (Townhall Media)
- Appeals court again rejects DOJ's bid to block some California ballots, setting up Supreme Court showdown — Democracy Docket · Left-leaning; founded by Democratic election lawyer Marc Elias
- Judge denies federal request to segregate California ballots, says it would 'wreak havoc' on voting — PBS NewsHour · Publicly funded broadcaster carrying AP reporting; center
- Ninth Circuit Won't Order California to Set Aside Noncitizen Ballots — Breitbart · Right-wing, pro-Trump digital outlet
- 9th Circuit denies Trump DOJ's demand for California to set aside likely noncitizen ballots — but it's not over — The Blaze · Conservative media company founded by Glenn Beck