Divided Ninth Circuit Sends DOJ's California Mail-Ballot Fight Back to the Trial Judge

The ruling. A divided panel of the U.S. Court of Appeals for the Ninth Circuit on Monday, Oct. 26, refused to take up the Justice Department's emergency bid to make California set aside mail ballots from more than 20,000 registered voters whom federal agencies flagged as likely noncitizens. The case is United States v. State of California, No. 26-7070 (order; docket).

The panel did not decide whether California must hold those ballots back. It decided that it could not hear the appeal yet. The unsigned order says: "the United States failed to allow the district court adequate opportunity to consider its application for a Temporary Restraining Order ('TRO'). For that reason, we lack jurisdiction over this appeal." The court granted Los Angeles County's motion to dismiss the appeal and denied DOJ's emergency motion as moot.

• Majority: Judges Mark J. Bennett, a Trump appointee, and Gabriel P. Sanchez, a Biden appointee. Each also wrote a separate concurrence.
• Dissent: Judge Patrick J. Bumatay, a Trump appointee.

Why the court said it had no jurisdiction. Appeals courts can normally review a trial judge's order only after the judge rules. DOJ argued that Judge Carter's silence amounted to a "constructive denial," relying on the Supreme Court's 2025 decision in A.A.R.P. v. Trump. The panel laid out this timeline from the record:

• Oct. 15: DOJ filed suit. The panel noted the complaint "said nothing about irreparable harm, did not request a deadline for relief," and came with no TRO motion.
• Oct. 19: DOJ attached a draft TRO request to a motion to exceed the page limit. It asked for relief "by November 3, 2026."
• Oct. 21: The case was reassigned to Carter. DOJ formally filed the TRO, again asking for a ruling by Nov. 3, and Carter set a hearing for Oct. 27. Around 9 p.m. that night, DOJ asked him to rule by noon the next day (Dkt. 67). It pointed to the county's statement that it had already processed more than 331,000 mail ballots.
• Oct. 22: With no ruling by noon, DOJ appealed.
• Oct. 25: The Ninth Circuit heard argument on a Sunday.

"The United States's claimed emergency, at least in part, is a self-constructed one," the majority wrote. Unlike the detainees in A.A.R.P., who faced removal from the country that night, the panel said, "the United States, here, has not" acted as promptly as it could. It added that DOJ had conceded at argument that district court proceedings would continue and that the losing side could still appeal. "There is here no loss of jurisdiction."

What the separate opinions said. Bennett wrote that even if the court had jurisdiction, he would deny DOJ's motion. He said the Constitution's Elections Clause gives states the default power over how ballots are processed, and that Congress has not overridden California's system. DOJ relies on 18 U.S.C. § 611, the federal ban on noncitizen voting, which he called "a misdemeanor criminal provision." In his view, using it "to prescribe how Defendants must process ballots once received would contravene the Elections Clause." He added: "If Plaintiff believes requiring additional confirmation of citizenship is necessary for vote-by-mail ballots, I believe the appropriate audience for that suggestion … is Congress, not the courts."

Sanchez wrote that the Purcell principle, which warns federal courts against changing election rules close to an election, would bar the order "even if we had jurisdiction." He said it would "transform California's election rules for an election that is already underway."

Bumatay, in dissent, would have ordered the ballots set aside. His argument is summarized under What the Right Says.

What happened Monday night. The court gave the parties until 7 p.m. PT Monday to seek rehearing by the full Ninth Circuit (Dkt. 64). "No party filed a petition for rehearing en banc," and no judge called for a vote, the court's en banc coordinator wrote (Dkt. 65). The mandate issued that evening, returning the case to the district court. A corrected version of the order, fixing typos, was posted Tuesday morning.

Where the district case stands. Carter, who was nominated by President Clinton, holds the TRO hearing at 1 p.m. PT Tuesday. In an Oct. 23 order he wrote: "The Court will rule promptly after hearing from the Parties at oral argument on Tuesday, October 27, 2026" (Dkt. 85). Several other matters are also pending:

• motions to dismiss from both the state and the county
• requests to intervene from voting and civil rights groups
• an amicus brief from Washington, 20 other states and the District of Columbia supporting California (Dkt. 60)
• a motion filed Tuesday by Florida and 10 other states for leave to file a brief supporting DOJ (Dkt. 114)
• a similar request from the National Republican Congressional Committee

DOJ also filed a notice Tuesday that it was manually lodging a flash drive with the court. The court's case page posts the major filings.

The county letters. While the appeal was pending, DOJ took its demand to county election offices.

• San Mateo County said it received a DOJ letter "late Friday afternoon, October 23," asking about 328 registered voters (statement).
• San Luis Obispo County's registrar said a DOJ representative hand-delivered a letter that day. She said it "demanded confidential voter registration information and action on my part that would affect certain Vote-by-Mail ballots" (statement).
• Statewide count. NBC News, which obtained the San Bernardino County letter, reported that letters went to 57 of California's 58 counties. Los Angeles got its letter the week before. We could not find that count in a government document.
• What the letters ask. According to NBC, the San Bernardino letter, signed by First Assistant U.S. Attorney Bill Essayli, lists 1,133 "likely aliens." It asks the county to commit within 48 hours to help sort out who is a citizen and to "segregate — not cancel" the mail ballots of anyone whose citizenship can't be confirmed.