The Trump Justice Department just took another emergency swing at California’s ballot-counting rules—and a divided Ninth Circuit panel knocked it down.
In a 2-1 ruling Friday, the appeals court refused to force California to segregate mail ballots connected to more than 20,000 registered voters the federal government believes are likely noncitizens.
That means California can keep processing those ballots under its existing election procedures with Election Day only days away.
But the decision was anything but unanimous.
Judge Patrick Bumatay, a Trump appointee, issued a blistering dissent warning that potentially unlawful votes could be mixed with legitimate ballots before officials determine whether the people who cast them are eligible.
And now the fight appears headed straight toward the Supreme Court.
The dispute began after federal investigators compared California voter-registration records with immigration and identity databases.
The Justice Department said that analysis identified more than 20,000 people it believes are likely noncitizens who were registered to vote and mailed ballots for the federal election.
Federal officials gave California a list of the names and asked the state to review them, verify citizenship and set aside any returned ballots until each voter’s eligibility could be established.
The department said Homeland Security Investigations worked with federal partners to compare public voter-registration records against immigration and identity data. Officials described the results as a list of people they believed were likely noncitizens—not a final court judgment that every person on it was ineligible.
The timing became central to the fight. California mailed ballots to registered voters on October 1, while the federal government delivered its list on October 13 and demanded a response within 48 hours.
California refused.
The state disputed the reliability of the federal list and argued that the demand came too late to rewrite ballot-processing rules in the middle of an election.
The DOJ then sued California and Los Angeles County on October 15.
Its requested remedy was narrow but consequential: preserve the disputed ballots without tabulating them until officials could verify the voters’ citizenship.
First Assistant U.S. Attorney Bill Essayli made that distinction explicit as the case raced through the courts.
U.S. District Judge David Carter rejected the government’s request for a temporary restraining order Wednesday.
Carter said federal prosecutors have a remedy available when they can prove that a noncitizen voted: bring a criminal case under federal law.
He also warned the Justice Department to stop threatening state and county election officials.
The DOJ immediately appealed and asked the Ninth Circuit for emergency relief.
That brought the case back before the same three-judge panel that had already rejected an earlier attempt to leapfrog the district court before Carter ruled.
This time, the panel reached the government’s renewed request after the lower court’s written denial.
Judges Mark Bennett, a Trump appointee, and Gabriel Sanchez, a Biden appointee, formed the majority.
The court’s order concluded that the Justice Department had not carried the heavy burden required for an injunction pending appeal. The decision therefore leaves the district court’s denial and California’s current procedures in place.
The majority said there were serious concerns that granting the government’s request could disenfranchise eligible voters and throw California’s tabulation process into jeopardy.
The judges also relied on the district court’s doubts about the reliability of the government’s list.
They concluded that the government had not shown it was likely to prevail on the legal theories behind its request. The majority said the federal criminal ban on noncitizen voting does not itself hand the executive branch a private civil cause of action to redesign a state’s ballot-challenge process.
The panel also said Congress had not used its Elections Clause power to replace California’s procedures with the emergency system the DOJ wanted the courts to impose.
Without that congressional command, the majority said California’s existing statutory process remains controlling.
That point matters because the DOJ’s case does not rest on a judicial finding that all 20,000 people are noncitizens.
It rests on federal agencies’ conclusion that they are likely noncitizens and should be checked before their ballots are mixed into the count.
California says the list contains major errors and could sweep in eligible citizens.
The DOJ says waiting until after potentially unlawful ballots are mixed with lawful ones makes the harm impossible to undo.
That is the central collision in the case.
California argues that changing the process now could unlawfully burden voters and disrupt an election already underway.
The federal government argues that refusing to separate disputed ballots risks diluting the votes of eligible American citizens.
Essayli laid out the government’s position in an interview after the district-court hearing.
The majority also pointed to Congress’s 90-day quiet period for sweeping voter-roll changes before a federal election.
It said the reliability concerns surrounding the federal list reflected exactly the danger that rule is designed to reduce.
The judges further rejected the DOJ’s attempt to use a federal criminal law banning noncitizen voting as a vehicle for ordering California to adopt a new ballot-challenge procedure.
In the majority’s view, Congress has not exercised its Elections Clause authority to replace California’s established rules with the process the executive branch requested.
Bumatay saw the case very differently.
He argued that both federal and state law prohibit noncitizens from voting and that the government proposed a modest way to preserve the disputed ballots while officials checked eligibility.
Separating a ballot, he stressed, does not cancel it.
It simply prevents the ballot from being irreversibly mixed with the broader count before the voter’s eligibility is resolved.
Bumatay accused the district court and his two colleagues of refusing a reasonable election-integrity safeguard even though the government says the threat is immediate.
The Associated Press reported that Justice Department lawyers have already indicated they will appeal the Ninth Circuit’s decision.
That would put the dispute before the U.S. Supreme Court just days before the November 3 election.
The report also noted that the majority was made up of one Trump appointee and one Biden appointee, while the dissent came from another Trump appointee. Hundreds of thousands of ballots have already been processed, and California election officials say that once a verified ballot is separated from its identifying envelope and mixed with other ballots, it cannot be traced back to the voter who submitted it.
That logistical reality is why both sides describe the clock as decisive.
The DOJ says every additional processed ballot risks an irreversible dilution of lawful votes. California says a court-ordered segregation plan this late could wrongly burden eligible citizens and destabilize a statewide count already in motion.
The larger lawsuit is not over.
Nor has any court made a final determination about the citizenship of every person on the federal list.
But the immediate question has now been answered twice by the Ninth Circuit.
California will not be ordered to segregate the disputed ballots before the election—unless the Supreme Court steps in.
For the Trump DOJ, that makes the next move as obvious as it is urgent.
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[ H/T WLT Report ]
