Judge Carter Refuses to Hold Back 20,000 California Mail Ballots. DOJ Is Appealing Again.

The ruling. U.S. District Judge David O. Carter on Wednesday, Oct. 28, denied the Justice Department's request for a temporary restraining order that would have made California and Los Angeles County set aside mail ballots from more than 20,000 registered voters whom federal agencies identified as likely noncitizens. The case is United States v. State of California, No. 2:26-cv-12025 (order, Dkt. 149; docket).

The 26-page order opens: "Never before in American history has the federal government, on the eve of an election, sought to coerce a state and local government to abandon their own Constitutional elections procedures and bend to the will of the Executive Branch." It ends: "If the Executive can discount votes and threaten an ongoing election due to unproven allegations, then our democracy is in danger. This Court declines to be a party to such process."

Why he ruled against DOJ. A temporary restraining order requires a strong showing on four points. Carter found DOJ fell short on each:

• Likely to win? No, he said. DOJ "likely does not have standing or a cause of action." The federal ban on noncitizen voting, 18 U.S.C. § 611, is a misdemeanor law aimed at individual voters and does not override California's ballot-counting rules. Ordering state officials to carry out federal enforcement would raise Tenth Amendment "commandeering" problems. He also said the order DOJ wanted would likely violate the National Voter Registration Act's 90-day "quiet period," the Voting Rights Act and the Civil Rights Act, because it would put one group of voters through a citizenship check no one else faces.
• Harm to DOJ? Carter said any urgency was "solely due to its own neglect." DOJ had California's voter file by May 8 and told the Secretary of State on July 16 that up to 190,832 noncitizens might be registered, but did not sue until Oct. 15.
• The list. Carter wrote that he "cannot conclude that Plaintiff's process is credible." He said DOJ had not disclosed matching rules or error rates, revealed only the night before the hearing that it used LexisNexis data, and never explained how roughly 190,000 names became 20,000. He pointed to Nevada, where, he wrote, a DHS count of 15,903 shrank to 185 and state officials then said all 185 were citizens.
• The election. Citing the Supreme Court's Purcell rule against late changes, he wrote that "the election is not merely upcoming; it has already started." Los Angeles County had processed more than 331,000 mail ballots by Oct. 20, according to its filing, and its system "has no function for setting aside the ballots of designated voters."

His remedy for DOJ: "The United States can prosecute individuals according to Section 611, as it has historically and recently done." He also addressed DOJ's warning that local officials who count the ballots could face aiding-and-abetting charges: "these threats must stop."

The appeal. DOJ filed a notice of appeal to the Ninth Circuit the same day (Dkt. 152). It also filed a renewed request asking Carter to order the ballots set aside while the appeal runs (Dkt. 153). It argues that "once a vote-by-mail ballot has been processed, it cannot be undone." This time there is an actual ruling to appeal. On Monday, a 2-1 Ninth Circuit panel dismissed DOJ's first appeal because Carter had not yet ruled (order). If the appeals court turns DOJ down again, the next stop would be the Supreme Court. DOJ has asked the Ninth Circuit to rule by Friday, Oct. 30, according to Democracy Docket, which quoted the filing. We have not seen that filing ourselves.

Thursday: a special master and a Nov. 13 hearing. On Thursday, Oct. 29, Carter appointed Daniel B. Garrie as a technical special master "to assist the Court in developing the factual record" (order, Dkt. 159). He set an expedited hearing for Friday, Nov. 13, on California's and Los Angeles County's motions to dismiss the case and on DOJ's motion for a preliminary injunction. By Nov. 6, all parties must submit witness lists, including experts, on "the reliability of the October List and the methodology Plaintiff used to produce it," and those witnesses must be ready to take the stand at the hearing. DOJ and the state and county will split the special master's costs evenly. The same day, the voting-rights groups that joined the case, LULAC and the NAACP, filed an opposition to DOJ's request for an injunction during the appeal, arguing that the Purcell concerns are "only more substantial" as Election Day nears (Dkt. 160). As of our check Thursday afternoon PT, Carter had not ruled on that request.

The indictments. Also on Wednesday, a federal grand jury in Santa Ana indicted three Los Angeles County residents, according to the U.S. Attorney's Office. Each is charged with making a false statement under oath on a naturalization application. Prosecutors allege each one swore they had never claimed U.S. citizenship or registered to vote, when in fact they had registered in California:

• Sulema de León, 35, of Long Beach, a Mexican national: allegedly registered in June 2013 and voted in November 2020 (earlier complaint docket)
• Butleng Taing, 43, of Long Beach, a Cambodian national: allegedly registered in July 2021 and voted in November 2022 and November 2024 (docket)
• Rouzbeh Seyamaknejad, 63, of Rancho Palos Verdes, a Canadian national: allegedly registered in December 2018 (docket)

All three were first charged by criminal complaint on Oct. 16. The release says the maximum sentence is five years. "An indictment merely contains allegations," the office notes, and all defendants are presumed innocent until proven guilty. The release does not say whether any of the three is on the 20,000-name list.

What about Virginia? Some posts this week said the Supreme Court had just let Virginia keep removing people who identified themselves as noncitizens. We found no new order like that on the Supreme Court's website. The order people are citing came two years ago. On Oct. 30, 2024, the Court stayed a lower-court ruling and let Virginia continue that program before the 2024 election (Beals v. Virginia Coalition for Immigrant Rights, No. 24A407). Justices Sotomayor, Kagan and Jackson would have denied it. Since then, Gov. Abigail Spanberger ordered in March that such systematic removals finish at least 90 days before a federal election (release). In April, the state settled the case by agreeing not to run the program inside that window. Carter's order relies on the same 90-day rule.