9th Circuit questions DOJ demand to set aside 20,000 California mail
ballots
[October 26, 2026]
By REBECCA BOONE
A panel of federal appellate judges on Sunday questioned the timing,
constitutionality and authority of the Justice Department's demand that
California election officials set aside thousands of mail ballots from
people the federal government suspects may not be citizens.
During rare weekend arguments, two of the three judges on the 9th U.S.
Circuit Court of Appeals appeared skeptical of a lawsuit brought by
President Donald Trump's administration in mid-October. The lawsuit
accuses California officials of failing to meet a 48-hour deadline to
review 20,000 names the administration flagged as likely noncitizens on
the state's voter rolls.
The administration asked a federal judge to require the state to
withhold counting those ballots until the voters’ immigration status
could be verified. The district judge scheduled a hearing for Oct. 27,
days after the case was assigned, but the federal government appealed to
the 9th Circuit Court of Appeals, seeking an expedited decision.
Justice Department attorney Matthew Donnelly told the panel that
California is causing irreparable harm “by allowing noncitizens to vote
in violation of their own state laws. The damage is irreversible and
irrevocable.”
The Trump administration has made efforts to identify noncitizen voters
a priority this year, even though noncitizen voting is exceptionally
rare.
Circuit Judge Mark Bennett, a Trump appointee, questioned whether the
appellate court even has jurisdiction to hear the case even before a
ruling by the lower court.
Donnelly argued that the schedule set by the lower court judge was too
slow and effectively a denial of the government's request, as state
elections officials process thousands of mail ballots every day.
Judge Gabriel Sanchez, appointed by former President Joe Biden,
questioned whether the federal government was violating the Tenth
Amendment, essentially commandeering the state to enforce a federal law
that makes it a misdemeanor for a noncitizen to vote.
The federal government is simply asking California to enforce their own
law, which also bans noncitizens from voting, Donnelly said. He argued
the state's refusal to comply with the federal request to set aside the
ballots for review was “frustrating the purpose” of the federal law
against noncitizen voting.
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The Elections Clause of the U.S. Constitution gives state legislatures
the power to set the time, place and manner of congressional elections,
Bennett said. The executive branch may be “unhappy with what they’re
doing, and doesn’t like the manner,” Bennett said, but under the
Election Clause the state has the right to determine those issues —
including how it sorts out any noncitizen voters.
Attorney Seth Waxman, representing Los Angeles County Clerk Dean Logan,
said the federal government's list was unreliable and that segregating
the ballots for a review process would effectively disenfranchise
thousands of eligible voters.
Even if election staffers spent just three minutes checking each of the
expected 2.75 million mail ballots against the government's list, the
process would take 140,000 man-hours, Waxman said — or about 16 years of
working time.
Waxman cited a review of 200 records from the Trump administration's
list conducted by Los Angeles County staffers. Assistant
Registrar-Recorder Monica Flores said in a court filing that the sample
included canceled or inactive registrations, individuals with no voting
history and voters who appeared to have been born in the United States,
which the filing notes “is strong evidence of citizenship.”
If the administration disagrees with how California runs its elections,
it can ask Congress to change that process, said attorney Sam Siegel,
representing California Secretary of State Shirley Weber.
The federal government has provided no credible evidence to support its
suspicions, said Siegal.
“It has no basis in law or in fact,” he told the panel. “We just dispute
the premise that noncitizens are voting."
But Judge Patrick Bumatay, who was appointed by Trump, said everyone has
an interest in ensuring that only eligible citizens vote. He suggested
that granting the administration's request for an emergency order could
provide clarity.
“Without an injunction, you will never know” if that is happening,
Bumatay told Seigel.
Bennett said the panel would try to issue a ruling as quickly as
possible.
___
Boone reported from Boise, Idaho.
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