Appeals Court Turns Away Emergency Bid to Set Aside California Mail Ballots
A federal appeals court has rejected the Justice Department’s attempt to immediately force California to separate mail ballots connected to more than 20,000 registered voters whom federal officials suspect may be noncitizens. The October 26 decision leaves the dispute before a trial court, with a hearing scheduled for October 27, one week before Election Day.
The distinction matters: the Ninth Circuit dismissed the appeal because it lacked jurisdiction at this stage. It did not settle the underlying lawsuit or determine the citizenship of the people on the federal government’s list. As CNN reported, the three-judge panel split 2–1 after an unusual Sunday hearing.
Why the emergency appeal failed
In its published order, the court said the federal government had not given the district judge adequate time to consider its request for a temporary restraining order. The government initially requested relief by November 3. After the judge scheduled an October 27 hearing, federal lawyers sought a ruling by noon the following day, allowing about fifteen hours, including only three business hours.
When no ruling arrived on that timetable, the department appealed, arguing that the judge’s inaction effectively amounted to a denial. The majority rejected that reasoning. It pointed to the government’s earlier knowledge of the dispute, its delay in bringing the lawsuit, and California’s established schedule for processing mail ballots. The district court was still considering the request and had promised to rule promptly after hearing the parties.
Judges Mark Bennett and Gabriel Sanchez agreed that the appeal was premature. Judge Patrick Bumatay dissented. Their disagreement does not change the immediate outcome: the appeals court did not order California to set aside the ballots.
What federal officials allege
The Justice Department’s October 15 announcement describes an effort by federal agencies to compare voter-registration information with immigration records and other data. Officials allege that more than 20,000 people likely to be noncitizens appeared on California’s voter rolls and received mail ballots. They want ballots associated with those names withheld from tabulation until citizenship can be verified.
Those are allegations that require examination. A name on an investigative list is not itself a judicial finding of ineligibility, and receiving a ballot is different from returning one. The list’s size therefore should not be presented as a count of unlawful votes.
Federal law generally prohibits noncitizens from voting in federal elections. The central dispute concerns how that prohibition may be enforced through the requested intervention in California’s ballot procedures.
The accuracy of the list is contested
California officials challenge both the reliability of the data and the federal government’s authority to demand these changes. In its response to the ruling, the state attorney general’s office described discrepancies found during a preliminary Los Angeles County review of 200 names: more than half had inactive or canceled registrations, 38.9 percent listed a U.S. birthplace, and 71.2 percent had no voting history.
These are the state’s reported findings from a limited review, rather than a complete audit of the federal list. The categories can overlap and should not be added together. They illustrate why the quality of the underlying records matters before conclusions are drawn about thousands of individual voters.
The separate judicial opinions also reveal unresolved questions about the requested remedy. Bennett wrote that he would deny emergency relief on the merits even if the court had jurisdiction, questioning whether the federal criminal statute displaced California’s election procedures. Sanchez warned about disruption during an election already underway. Bumatay argued that federal authorities must be able to act against potential unlawful noncitizen voting. The majority’s controlling decision remained procedural.
How mail ballots are handled
California’s official vote-by-mail guidance explains that counties send ballots to active registered voters. When a ballot comes back, election officials compare the signature on its return envelope with signatures in the voter’s registration record. After verification, the ballot is separated from its envelope to protect the secrecy of the vote.
That separation helps explain the practical stakes of a request to identify and segregate ballots while processing is already underway. Officials must administer eligibility checks alongside rules protecting ballot secrecy. Signature comparison verifies a different aspect of the process from the citizenship inquiry at issue in this case; the two should not be treated as interchangeable.
California also provides a process for correcting a missing or noncomparable signature. Voters with questions about an individual ballot should follow their county’s instructions and consult the official county elections office directory.
What remains to be decided
The next scheduled step is the district court hearing. Its outcome was still pending when this article was prepared on October 26. The appeals court’s decision leaves room for further litigation rather than guaranteeing a final result for either side.
For the public, the immediate task is to keep the categories clear: suspected ineligibility, verified ineligibility, ballots mailed, ballots returned, and votes counted describe different things. Confidence in elections depends on enforcing eligibility rules and protecting eligible voters through reliable evidence and lawful procedures. This case tests how those responsibilities fit together under the pressure of an election already in progress.
Archive photograph: Third-floor corridor of the James R. Browning U.S. Court of Appeals Building, San Francisco, photographed in 2009; it does not depict this case’s hearing. Credit: Carol M. Highsmith Archive, Library of Congress, Prints and Photographs Division. Source and reuse information: no known restrictions on publication.
