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# Ninth Circuit Dismisses DOJ Appeal Over California Mail Ballots
- URL: https://askablackman.me/ninth-circuit-dismisses-doj-appeal-over-california-mail-ballots/
- Published: 2026-10-30T16:48:01.000Z
- Updated: 2026-10-30T16:48:01.000Z
- Description: A divided appeals court said the Justice Department rushed to appeal before giving a federal judge time to rule, leaving California's ballot-counting process intact days before the November 3 election.
- Author: Free Game News
- Tags: Politics

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The Justice Department went to court this month with a striking request: it wanted a federal judge to order California to set aside mail ballots from more than 20,000 registered voters whom the Department of Homeland Security had labeled "likely" noncitizens, and to verify their citizenship before counting their votes. Days before the November 3 midterm election, the department lost, and it lost in a way that says a lot about how it has been litigating.

On October 26, a three-judge panel of the Ninth Circuit Court of Appeals dismissed the DOJ's emergency appeal, ruling 2-1 that it lacked jurisdiction to hear the case at all. The reason was procedural, and the majority, Judges Mark Bennett and Gabriel Sanchez, laid the blame squarely on the government's own conduct. The United States, the court said, had "failed to allow the district court adequate opportunity" to consider its request for a temporary restraining order. Judge Patrick Bumatay dissented.

The timeline matters. Homeland Security agencies had been working since the summer on a list of suspected noncitizens on California's voter rolls, cross-referencing voter data with internal and third-party records. In July, the Secretary of Homeland Security contacted California officials about the list. California responded with skepticism and asked for details about the methodology. Then, according to the court's account, the federal government went quiet.

California, following a state law that requires vote-by-mail ballots be sent to every registered voter, mailed ballots to all of them on October 1\. Only on October 13, twelve days later and less than three weeks before the election, did the federal government send over its list of more than 20,000 names and demand a response within 48 hours. California declined. The DOJ sued on October 15, filed its restraining order request on October 21, and then demanded the district court rule within fifteen hours, by noon the next day. When Judge David Carter, who had already scheduled a hearing for October 27 and promised to rule promptly, did not meet that deadline, the DOJ declared his silence a "constructive denial" and appealed.

The Ninth Circuit was unsparing. The majority described the government's claimed emergency as at least partly "a self-constructed one," noting that the delay was attributable to the government's own late filing and its failure to account for the state law that had governed ballot processing all along. Los Angeles County had already processed more than 331,000 ballots by the time the DOJ demanded its fifteen-hour ruling. The district court, meanwhile, is still considering the restraining order request on its own schedule.

Step back from the procedure and the picture sharpens. The underlying claim, that noncitizens are voting in federal elections, is already a federal crime under 18 U.S.C. Section 611, and the government says some individuals on its list were charged with that offense. But the government's own filing acknowledged uncertainty at the core of its case: the word it kept using was "likely" noncitizens, a label built on data matching whose methodology California was never shown in detail. Lists like this have a long history of sweeping up naturalized citizens and eligible voters alongside anyone genuinely ineligible. Demanding that 20,000 people prove their citizenship days before an election, with ballots already cast, is a remedy that would predictably disenfranchise some eligible voters in the name of stopping a problem the government had not yet proven at scale.

That is the tell. A litigation strategy built on genuine legal urgency looks different from this. It files early. It shares its evidence. It gives courts time. What the DOJ did instead was sit on its list for months, spring it on the state twelve days after ballots went out, demand a ruling in fifteen hours, and appeal the instant the clock ran out. One reasonable reading is that the legal victory was never entirely the point. A lawsuit against California over noncitizen voting is politically useful to this administration whether it wins or loses. It generates headlines, reinforces a campaign narrative, and casts doubt on the integrity of mail voting in the country's largest state. Losing on procedure even helps that narrative, because it lets the government blame the courts rather than defend its evidence.

The cost of that strategy falls on election administration itself. Every rushed filing forces county officials to divert time and lawyers in the final stretch before an election. Every public accusation that thousands of ballots are suspect chips at voter confidence, regardless of whether the accusation survives contact with a judge. And every procedural defeat like this one makes it harder for courts, the public, and even future federal lawyers to take the department's election claims seriously when a genuine case arrives.

Judge Carter's hearing on the restraining order went forward as scheduled on October 27\. The case is alive in the district court, and the DOJ can still press its claims through the normal process. What it cannot do is force California to set aside ballots before November 3\. For this election, at least, the counting proceeds.

## Free Game Takeaway

Watch the gap between the accusation and the evidence. The government labeled 20,000 voters as "likely" noncitizens using a methodology California never got to inspect, then demanded those voters' ballots be quarantined within 48 hours. When any official, federal or local, makes an election claim, the first question worth asking is whether they showed their work and gave the process time to function. A claim filed months early with disclosed evidence deserves one level of trust. A claim filed days before an election, built on an unreleased list, and rushed through court in fifteen hours deserves another. For California voters flagged on that list, the immediate risk has passed, but the district court case continues, and the same list-based tactic could reappear in other states and future elections. The durable lesson is that procedure is where performative lawsuits and serious ones separate, and the Ninth Circuit just showed exactly where that line sits.