Ninth Circuit Dismisses the Justice Department's Appeal Over California Ballots: What the Three Opinions Say

A three-judge panel of the Ninth Circuit dismissed the Justice Department's emergency appeal in a dispute over California's mail ballots on Monday, ruling in a per curiam order that the court lacked jurisdiction because the United States "failed to allow the district court adequate opportunity to consider its application for a Temporary Restraining Order," according to the opinion in United States v. California, No. 26-7070, filed Oct. 26. Judge Bumatay dissented. Judges Bennett and Sanchez each filed concurrences saying they would also have denied the request on other grounds.

The government asked the court to order California and Los Angeles County "to set aside vote-by-mail ballots from persons identified by the Federal Government likely to be noncitizens" and to verify their citizenship before counting them. The order describes how the dispute reached the court. U.S. Citizenship and Immigration Services and Homeland Security Investigations obtained California's voter roll and built a list of people they labeled "high-confidence" noncitizens. In July, the Homeland Security secretary told California officials about the list of "thousands," and the state responded with skepticism and asked for the methodology. California mailed ballots to all registered voters on Oct. 1, as state law requires. On Oct. 13, the government sent a new list of more than 20,000 names and gave a 48-hour deadline. It sued on Oct. 15.

The panel's reasoning focuses on timing. The government filed its complaint Oct. 15 without a request for emergency relief, the order says, and on Oct. 19 attached a request for a TRO to a motion to exceed page limits. Both that filing and a second, filed Oct. 21, asked the court to act "by November 3, 2026." The case was reassigned to Judge David Carter on Oct. 21, who set a hearing for Oct. 27, a week before the requested date. At about 9 p.m. that night, the order says, the government filed a request for a ruling by noon the next day, after learning in the defendants' opposition that Los Angeles County had processed more than 331,000 ballots since Oct. 5. When the court did not rule within about 15 hours, the government appealed, calling the silence a "constructive denial."

The panel rejected that theory, distinguishing the Supreme Court's 2025 decision in A.A.R.P. v. Trump, in which detainees faced removal "tonight or tomorrow." The order says "any delay in the availability of judicial relief is, at least in part, the product of the United States's own decisions," and that the claimed emergency "is a self-constructed one." It adds that the government had raised concerns about California's rolls since at least July 16 and that neither California's law allowing ballot processing 29 days before an election nor its law mailing ballots to registered voters is new. The panel granted the county's motion to dismiss and denied the government's emergency motion as moot, along with motions to intervene.

Judge Bennett, concurring, wrote that even if the court had jurisdiction he would deny the injunction. He cited the Purcell principle, which discourages federal courts from changing election rules close to an election, and said the government had not shown it was likely to suffer irreparable harm. In a footnote he noted that the defendants' sample of 200 records from the October list "showed that 'among the records for which birthplace information was meaningfully reported, 38.9% indicated that they were born in the United States.'" That figure is the defendants' own claim, quoted from their filing; the opinion does not find that the list is wrong, and Bennett wrote that without factual findings from the district court the court cannot assess its accuracy.

Judge Sanchez, also concurring, wrote that the request would "transform California's election rules for an election that is already underway" and would "usher in electoral chaos," quoting the Supreme Court's September order in People Not Politicians v. Onder. He recounted that Homeland Security Secretary Markwayne Mullin wrote to California Secretary of State Shirley Weber on July 16 that "as many as 190,832 non-citizens" may be registered in the state, that Weber replied seven days later asking for the data source and methodology, and that nothing more was heard until Oct. 13. He wrote that the proposed injunction asked a federal court "to dictate to California the manner in which it must administer its own electoral process."

Judge Bumatay dissented. He wrote that the federal government "has a sovereign interest in safeguarding federal elections and ensuring that the votes of noncitizens do not undermine our electoral results," and that the court had jurisdiction because the government told the district court on Oct. 21 it needed a ruling by Oct. 22 and the court did not act while ballots were being counted at large scale. He wrote that the government is likely to prevail on the merits because California's reading of state and federal law "unacceptably frustrates Congress's prohibition on aliens voting" under 18 U.S.C. § 611(a), and that the court should have enjoined California from processing ballots likely cast by noncitizens until citizenship could be verified. His dissent refers to the government's claim that thousands of noncitizens are registered; the other opinions note the state disputes the list's reliability.

The ruling does not decide whether the federal list is accurate or whether California must set any ballots aside. It leaves the question with Judge Carter, who has said he will "rule promptly after hearing from the Parties" on Tuesday, Oct. 27. Any decision there could be appealed again. Election Day is Nov. 3.