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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.

How spun is the coverage?Coverage bias 4.3 / 10
4 sides analyzed20 sources cited

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.

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The Bias Ledger average rating 4.3

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.

OutletVantageBiasHow they frame itThe tell
Associated PressU.S. center2Appeals court rejects Justice Department request for California to set aside disputed ballotsIt says 'disputed ballots' and names the agency, the Justice Department, rather than Trump. It uses few loaded words.
Al JazeeraQatari3US 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 HillU.S. center3Federal appeals court rejects Trump administration's California ballots argumentEarly 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.
RedStateU.S. right5It Looks Like the Dispute Over 20,000 'Likely Noncitizens' on CA's Voter Rolls Is Going to SCOTUSIt keeps 'likely' in quotation marks, but it frames the loss as a step toward the Supreme Court. The ruling itself comes second.
Democracy DocketU.S. left5Appeals 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 BlazeU.S. right59th Circuit denies Trump DOJ's demand for California to set aside likely noncitizen ballots — but it's not overIt keeps 'likely,' but the tag 'but it's not over' points readers toward a hoped-for next round.
BreitbartU.S. right7Ninth Circuit Won't Order California to Set Aside Noncitizen BallotsIts 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

  1. Ninth Circuit puts kibosh on Trump bid to sequester California ballots — Courthouse News Service · Independent legal-news service focused on court records; subscriber-funded
  2. Federal appeals court rejects Trump administration's California ballots argument — The Hill · Commercial D.C. political outlet owned by Nexstar; generally center
  3. US appeals court again rejects Trump bid to set aside California ballots — Al Jazeera · Qatari state-funded international broadcaster
  4. 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
  5. Appeals court dismisses DOJ's request to force California to set aside ballots — CBS News · Commercial network news (Paramount Skydance); center
  6. Order, No. 26-7070 (Oct. 26, 2026) — U.S. Court of Appeals for the Ninth Circuit · Primary source: federal court record
  7. 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
  8. 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
  9. Judge orders Trump administration to hand over list of alleged noncitizen voters — NBC News · Commercial network news (Comcast/NBCUniversal); center
  10. Court denies DOJ request to set aside ballots from 20,000 California voters — Axios · Commercial digital outlet owned by Cox Enterprises; center
  11. Appeals court rejects Justice Department request for California to set aside disputed ballots — Associated Press (via PBS NewsHour) · Nonprofit news cooperative wire; center
  12. Judge rejects DOJ request to block California from immediately counting ballots linked to alleged noncitizens — Fox News · Right-leaning commercial network (Fox Corp.)
  13. Appeals court rejects DOJ request to have California set aside disputed ballots — CBS News · Commercial network news (Paramount Skydance); center
  14. 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
  15. 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
  16. 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)
  17. 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
  18. Judge denies federal request to segregate California ballots, says it would 'wreak havoc' on voting — PBS NewsHour · Publicly funded broadcaster carrying AP reporting; center
  19. Ninth Circuit Won't Order California to Set Aside Noncitizen Ballots — Breitbart · Right-wing, pro-Trump digital outlet
  20. 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