Mail-in Voting: Appeals Court Rejects Ballot Bid
A federal appeals court has rejected the Trump administration’s latest attempt to stop California from counting mail ballots from more than 20,000 registered voters, handing the Justice Department its third courtroom defeat in a single week and leaving the disputed ballots in the count with the midterm elections just four days away. The 9th U.S. Circuit Court of Appeals ruled on Friday, October 30, that the government could not force the state to set aside the ballots while its lawsuit over alleged noncitizen voting continues. In a 2-1 decision, the San Francisco-based court declined an emergency request from the Justice Department, finding that granting it would risk taking votes away from eligible voters. The ruling keeps California’s existing ballot-counting procedures in place as early voting continues across the country’s most populous state, and it sets up a possible last-minute appeal to the Supreme Court in the final stretch of a midterm campaign in which control of Congress is at stake.
The decision is the newest chapter in a fast-moving legal fight that began in the middle of October and has already produced three rulings against the administration. It follows a district court decision two days earlier that refused the same request in blunt terms, and an earlier appeals court ruling that turned the government away on procedural grounds. Each time, the courts have left the ballots where they were: in the count, processed under California law like every other mail ballot. The Justice Department has argued throughout that the ballots come from voters on a federal list of likely noncitizens and should be held apart until their citizenship can be verified. California has answered that the list is unreliable, that its safeguards against voting by noncitizens are strong, and that pulling ballots out of the count at this stage would risk disenfranchising people who have done nothing wrong. On Friday, the appeals court sided, for now, with the state’s position, and its reasoning went to the heart of the dispute: what the government was asking for was not a pause, the majority said, but a step toward cancelling votes and striking voters from the rolls.
Mail-in Voting: What the Appeals Court Decided
The majority opinion was written by Judges Mark Bennett and Gabriel Sanchez. Bennett was appointed to the appeals court by President Donald Trump during his first term, and Sanchez was appointed by President Joe Biden, so the majority paired judges chosen by presidents of opposite parties. They pointed to the lower court’s finding that the administration’s voter list may not be fully reliable, and they concluded that the risk of harm ran in the opposite direction from the one the government described. “There is a material risk that granting the United States its requested relief would result in disenfranchisement,” the two judges wrote, adopting the concern that had driven the district court’s ruling two days earlier.
The majority went further, rejecting the government’s framing of its own request. The Justice Department had presented the order it wanted as a modest, temporary step: separate the ballots, hold them apart, and sort out citizenship later. The court refused that description. “The consequence of the United States’s request is not merely ballot segregation, but ultimately both the cancellation of the ballot and the removal of voters from the voting rolls,” the majority wrote. In other words, a ballot set aside in the final days of an election, with certification deadlines approaching, is not a ballot preserved for later. It is a ballot at risk of never being counted at all, cast by a voter at risk of being removed from the rolls on the basis of a list the courts have now repeatedly questioned.
The opinion also rested on constitutional ground. The majority wrote that it would decline what it called the government’s invitation to override the constitutional allocation of election authority, saying in effect that Congress has not used its power under the Elections Clause to displace California’s established laws for challenging ballots or removing ineligible voters, and that the state’s statutory scheme therefore remains the only lawful method for doing so. The judges added that the federal law barring systematic voter purges in the ninety days before a federal election pointed the same way, since the government’s request arrived barely three weeks before Election Day. And they accepted the district court’s practical finding: there is no workable way, at this stage, to identify and pull out the ballots of specific individuals without risking severe disruption to a counting system already processing millions of votes.
The dissent came from Judge Patrick Bumatay, also appointed by Trump. He described the government’s proposal as a reasonable request, arguing that separating the ballots would not itself cancel any vote but would simply preserve time for the state or the federal government to verify citizenship. In his view, the majority had overstated the consequences of a temporary hold. The disagreement between the majority and the dissent captures the whole dispute in miniature: one side sees a precaution that protects the integrity of the count, while the other sees an intervention that threatens the count itself. On Friday, the precaution lost, two votes to one.
DOJ News: How the Case Reached the Appeals Court
The case, United States v. State of California, began with a deadline. On October 12, the administration sent California a list of about 20,000 people it described as likely noncitizens who had received mail ballots, and it gave state officials two days to review the list and set the ballots aside. California refused, disputing the reliability of the data. On October 15, the Justice Department sued, asking a federal court to order the state to separate the ballots and hold them uncounted until citizenship could be confirmed. The lawsuit was an unusual federal intervention in a state’s election machinery, filed more than a week after mail ballots had already gone out to every registered voter in California and only weeks before a national election.
The administration’s first stop was the appeals court itself. It asked the 9th Circuit for emergency relief before the district court had fully considered the request. On Monday, October 26, a three-judge panel ruled 2-1 that it lacked jurisdiction over that appeal, because the department had not given the trial court an adequate chance to weigh the matter first, and it denied the emergency request as moot. That sent the dispute back to the district court in Los Angeles, where Judge David O. Carter heard the government’s request at a hearing on Tuesday afternoon.
Judge Carter’s ruling on Wednesday, October 28, was the most forceful of the three. He denied the request for a temporary restraining order, writing that the proposed order would wreak havoc on midterm elections already underway and could have a chilling effect on election workers and voters alike. In language that quickly drew national attention, he wrote that never before in American history had the federal government, on the eve of an election, sought to coerce a state and local government into abandoning its own constitutional election procedures and bending to the will of the executive branch. He warned that eroded trust in democracy is irreparable, and that once a vote is segregated, lasting harm has already occurred. He also found that the government was unlikely to succeed on the merits, questioning whether it had standing and a legal cause of action, whether the federal criminal ban on voting by noncitizens gave it authority to override California’s ballot-processing rules, and whether its own delay had created the emergency it claimed. The lawsuit, he noted, arrived weeks after early voting had begun, and the government had taken time to recognise that California law governs how ballots are issued and processed.
Within hours of that ruling, the administration appealed again. First Assistant U.S. Attorney Bill Essayli announced that the government had filed a notice of appeal and would seek emergency relief from the 9th Circuit, with the Solicitor General authorising an immediate appeal. His statement framed the stakes as an ongoing emergency in the other direction, arguing that every day more ballots are processed and that counting votes from ineligible voters dilutes the votes of American citizens. That appeal produced Friday’s decision, which means the government has now lost at the district court and twice at the appeals court in the same week, on the same ballots, in the same election cycle.
Midterm Elections 2026: Why the Ruling Matters Now
The timing is inseparable from the significance. Election Day falls on Tuesday, November 3, and Friday’s ruling arrived with less than four days to go. Millions of Californians have already voted by mail, and county election offices are already processing and counting ballots. An order to segregate 20,000 ballots at this stage would have forced counties to change their procedures midstream, sorting and setting aside ballots under a court deadline while the rest of the count continued. The appeals court’s decision avoids that disruption, at least for now, and its practical instruction to election officials is unchanged: keep counting, under California’s normal procedures, unless a higher court orders otherwise.
California’s centrality to the fight is no accident. It is the most populous state in the country, it holds 52 seats in the House of Representatives, more than any other state, and its ballots matter enormously to the battle for control of Congress. President Trump has made California a focal point of his broader confrontation with Democratic-led states, and the ballot lawsuit extends a fight over immigration enforcement into the machinery of elections themselves. The administration’s wider campaign has included more than 100 subpoenas across at least 13 states as its search for alleged noncitizen voters has ramped up, turning what began as a single-state lawsuit into a national programme of election scrutiny. State election officials across the country have argued that voter rolls are a state responsibility under the Constitution and that federal intervention weeks before an election risks chaos in vote counting. Supporters of the administration’s approach answer that the federal government has a legitimate interest in ensuring that only citizens vote, and that states have not done enough to clean their rolls. The courts, so far, have been sceptical of the administration’s methods even where they have not ruled on the underlying claims.
The dispute also sits against a factual backdrop both sides now treat as common ground in one respect: voting by noncitizens in federal elections is illegal in all 50 states. The argument is not about whether noncitizens may vote. It is about evidence, procedure, and timing. California officials have pointed out that the federal government at one point accused the state of having 190,000 illegal voters on its books, before revising that figure down to 20,000 when it filed its emergency lawsuit, and they have argued that a list with that history cannot justify pulling ballots out of the count days before an election. The courts have now three times declined to let the government act on the list on an emergency basis, while leaving the underlying lawsuit alive for a slower, fuller hearing after the election.
There is a parallel front as well. The Justice Department is similarly pressing Washington state to segregate ballots from hundreds of people it alleges are noncitizens, and the California ruling will be read closely by lawyers and election officials there. A pattern is emerging in which emergency intervention before the election is refused, while the broader legal questions about federal authority over state voter rolls are left for later. That pattern matters beyond this cycle, because it signals how courts are likely to treat last-minute federal election lawsuits in future elections too.
What Happens Next
The most immediate question is whether the Justice Department will take the case to the Supreme Court. Legal observers expect an emergency application within days, and possibly within hours, given that the administration has appealed at every stage so far and has framed the matter as an ongoing emergency. A Supreme Court intervention before Tuesday would have to come on an emergency timetable, in the middle of the final weekend of voting, and any order would likely be challenged in turn. If the Supreme Court declines to intervene, or does not act before the election, the case will continue on a normal schedule long after the votes are counted, with the disputed ballots already processed under California law and the result certified. Election officials in California have until December 3, the date by which results must be certified, to resolve outstanding questions, a timetable the district court cited when it found no need for an emergency injunction.
For California’s county registrars, the instruction for the weekend is straightforward: continue tabulating a vote that is already well underway, and process the flagged voters’ ballots alongside all others unless a higher court orders otherwise. For voters, the ruling removes, for now, the prospect that a ballot cast in good faith would be set aside on the basis of allegations the courts have found unproven. For the administration, it is another setback in an election-season legal strategy that has now failed three times in one week, but not a final defeat: the underlying lawsuit survives, the Supreme Court remains open, and the broader programme of subpoenas and state-by-state challenges continues.
The broader significance of Friday’s ruling will be debated well beyond this election. The appeals court’s opinion draws a sharp line around the federal government’s power to second-guess state election procedures on the eve of a vote, and it does so in language that future courts will quote whether they agree with it or not. The dissent draws the opposite line, warning that refusing even a temporary hold leaves no remedy if ineligible votes are counted. Between those two positions lies the question every election lawsuit eventually faces: when the vote is already underway, who bears the risk of being wrong, the state or the voter? On Friday, in California, four days before the midterms, the court answered that the risk should not fall on the voter.
Source: Reuters