Divided 9th Circuit rebuffs DOJ bid to set aside 20,000 ballots

In a divided ruling, a 9th U.S. Circuit Court of Appeals panel on Monday sent a Trump administration lawsuit seeking to order California elections officials to segregate ballots they claim are likely from noncitizens back to a district judge in Irvine who has scheduled a hearing Tuesday.

The appellate panel did not rule on the merits of the U.S. Department of Justice lawsuit Monday, a day after an oral argument on Sunday, but instead ruled that it had no jurisdiction over the case until U.S. District Judge David O. Carter rules on the government's requested temporary restraining order.

The U.S. "failed to allow the district court adequate opportunity to consider its application for a Temporary Restraining Order," wrote the panel majority, comprised of Judges Mark J. Bennett and Gabriel P. Sanchez, in a per curiam order. United States of America v. State of California et al., 26-7070 (9th Circ., filed Oct. 23, 2026).

"For that reason, we lack jurisdiction over this appeal," they added. "So we grant the County's motion to dismiss this appeal and deny as moot the United States's emergency motion for relief."

9th Circuit Judge Patrick J. Bumatay, an appointee of President Donald Trump, dissented, arguing that the majority opinion will allow noncitizens to vote.

"The federal government came to us for help as it sought to enforce Congress's law against illegal voting by aliens," he wrote. "It did so because California would not help. Instead, California interpreted state and federal law to stop it from doing so, while empowering it to mix legal and likely illegal ballots together."

But the panel majority - led by Bennett, another Trump appointee, and Sanchez, an appointee of President Joe Biden - said the government waited too long and presented a weak case.

"The United States's claimed emergency, at least in part, is a self-constructed one," they wrote, criticizing the Trump administration for filing too late and then, abruptly, demanding that Carter grant their requested temporary restraining order within 15 hours.

In a concurrence, Bennett responded to Bumatay's dissent.

"The Elections Clause gives States the default 'responsibility for the mechanics of congressional elections,' and Congress's enactment of a criminal statute against individual aliens who unlawfully vote is not a grant of authority for the Executive to restructure state election administration," Bennett wrote.

If he reached the merits, Bennett said he would deny the Trump administration's emergency motion for mandatory injunctive relief pending appeal.

Sanchez wrote in a separate concurrence that the Trump administration's bid violated the Purcell principle, a presumption against federal courts changing state election rules just before an election. Purcell v. Gonzalez, 549 U.S. 1 (2006).

"The proposed injunction would transform California's election rules for an election that is already underway and would cause widespread confusion among voters and election officials, divert election administration resources, and 'usher in electoral chaos,'" he wrote.

Matthew Donnelly, a Justice Department attorney, argued that state elections officials should "segregate" ballots from a list of 20,000 registered California voters he said the Trump administration has good reason to believe are noncitizens.

During Sunday's oral argument, Donnelly ran into sharp skepticism about whether the appellate panel could consider an appeal of a ruling not yet made by Carter.

"How do we have jurisdiction when the district court says it's going to rule expeditiously?" Bennett asked. "I don't see how we have jurisdiction."

Sanchez also questioned where the Trump administration's list came from, asking which third parties were involved in providing the information.

Bumatay expressed the most sympathy for the administration's argument. He said the case was not subject to anti-commandeering doctrine, which bars the federal government from requiring state officials to enforce federal law.

"Can noncitizens vote?" he asked Supervising Deputy Solicitor General Samuel P. Siegel, representing Secretary of State Shirley Weber. "Without an injunction, we'll never know."

Siegel, however, said there was nothing for the appellate panel to review.

Seth P. Waxman, a partner with Wilmer Cutler Pickering Hale and Dorr LLP who represents Los Angeles Registrar Recorder/County Clerk Dean C. Logan, said the government's argument - based in part on Donnelly saying they didn't realize counties were counting hundreds of thousands of mail-in ballots as they were returned - was "absurd on its face."

"It is entirely clear that there is no legal or operational way to segregate ballots," he said, estimating that checking all of the 20,000 ballots across the state would take ballot workers 16 years - well past the deadline for certification.

Waxman also said the Trump administration made similar arguments about 15,000 voters in Nevada, only to discover that every one of them were citizens. Donnelly contested Waxman's assertion, saying Nevada simply relied on their attestations.

Tuesday's hearing on the Trump administration's order to show cause for a TRO is scheduled for 1 p.m. in Irvine.

Attorney General Rob Bonta praised the 9th Circuit decision, saying the Trump administration lawsuit was another effort to undermine election results and voting rights.

"The U.S. Constitution gives states and Congress -- not the President or the Executive Branch -- the power to determine the time, place, and manner of elections," he wrote. "The court's order serves as an important step in our efforts to protect Californians' right to vote and our state's authority to run fair and secure elections,"