DOJ Goes to Appeals Court Before Judge Rules on Its Bid to Set Aside 20,000 California Mail Ballots

The Justice Department asked a federal appeals court on Thursday to step into its lawsuit seeking to temporarily stop California from counting more than 20,000 mail ballots from voters the Trump administration says are likely not U.S. citizens, before the trial judge had ruled, Reuters reported.

Department lawyers took the unusual step because U.S. District Judge David O. Carter had not decided their emergency request by Thursday afternoon, as they had asked, according to Reuters, as published by NBC News. The department said it read the lack of a ruling as a "constructive denial" of its request, and filed a notice of appeal with the 9th U.S. Circuit Court of Appeals.

Carter has scheduled a hearing for next week, according to Reuters and KABC-TV in Los Angeles. Whether the 9th Circuit will treat his silence as an appealable denial is an open question.

What DOJ Wants Done With the California Mail Ballots

The U.S. Attorney's Office for the Central District of California sued the state on Oct. 15, about two weeks after California mailed ballots for the Nov. 3 midterm elections, Fox News Digital reported, citing the federal government. The suit asks the court to have ballots from the flagged voters set aside until their citizenship can be checked.

Bill Essayli, the first assistant U.S. attorney for the Central District, told Fox News Digital that federal investigators have determined that all 20,000 people on the list are not citizens and that the number is "the floor." Those are the government's claims; no court has ruled on them.

"We're not asking to cancel anyone's vote; we're not asking to do anything," Essayli told KABC. "We've provided a list of noncitizens, who we believe are noncitizens, to the state of California, and we ask that their ballots be separated from the other ballots, so that way we can go through the court process."

On Wednesday, the department asked Carter to rule by noon Thursday, Fox News Digital reported. In Los Angeles County alone, officials had already processed 331,000 ballots, according to court records cited by Fox.

California Pushes Back

California and Los Angeles County have asked Carter to dismiss the case. In court filings, state election officials have argued that county offices lack the authority and the access to federal records needed to verify citizenship, and that ballots cannot be pulled back out once they are processed, because a ballot is separated from its signed envelope after the signature is verified, Fox News Digital reported.

California Attorney General Rob Bonta said voter fraud is illegal and should be prosecuted, but argued the federal government's approach amounts to "You are guilty until proven innocent," according to KABC. He said he expects the court to dismiss the case.

Carter is the same judge who in January threw out a separate Justice Department lawsuit seeking California's full, unredacted voter registration database, calling the demand "unprecedented and illegal," according to KABC and Fox News Digital. The department has appealed that ruling.

Essayli told KABC that if the case is dismissed, Carter's court will be the first the department goes to, not the last.

Image: Ronald Reagan Federal Courthouse, Santa Ana, Calif. (file photo), Carol M. Highsmith, Library of Congress, public domain.

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Sources: Reuters via NBC News, "Justice Department asks appeals court to intervene in California ballot case" (Oct. 23, 2026): https://www.nbcnews.com/politics/2026-election/justice-department-asks-appeals-court-intervene-california-ballot-case-rcna605157 ; Fox News Digital, "Justice Department says 20,000 noncitizens got California mail ballots" (Oct. 22, 2026): https://www.foxnews.com/politics/doj-verified-20000-noncitizens-california-voter-rolls-federal-prosecutor-says ; KABC/ABC7 (Oct. 22, 2026): https://abc7chicago.com/post/us-department-justice-seeks-quick-action-dispute-alleged-california-noncitizen-voter-ballots/19969701/ ; Democracy Docket (Oct. 22, 2026): https://www.democracydocket.com/news-alerts/trump-doj-appeals-california-ballot-case-before-judge-even-rules/