Justice Department Asks Supreme Court to Make California Set Aside 20,000 Disputed Mail Ballots After Ninth Circuit Says No
The Justice Department on Monday asked the U.S. Supreme Court to order California to set aside more than 20,000 mail-in ballots that the federal government says were cast by people who are likely not U.S. citizens, one day before the Nov. 3 midterm elections.
The emergency request asks the justices to temporarily block lower-court rulings that refused to order the ballots separated while their eligibility is investigated, Fox News reported. The department argues the step would preserve the ballots without canceling any votes. California disputes that the ballots are unlawful and says the federal list may contain errors.
What DOJ Is Asking the Supreme Court to Do
"Once illegally cast ballots are counted and commingled with lawful votes, the resulting harm is impossible to remedy," the Justice Department wrote in its filing, according to Fox News.
The case began Oct. 15, when the United States sued the State of California, Secretary of State Shirley Weber and Los Angeles County Registrar-Recorder Dean Logan. According to a Ninth Circuit order, U.S. Citizenship and Immigration Services and Homeland Security Investigations obtained California's voter roll over the summer and built a list of "high-confidence" noncitizens. The government gave the list to state and county officials on Oct. 12 and asked them to sequester those ballots. They refused, "expressing doubt about the veracity and reliability of the list," the order says.
Acting Deputy Attorney General Trent McCotter previewed the move on Fox News on Oct. 31. "I think probably the Supreme Court's next on this one," he said, adding that any filing "would definitely be" before Election Day because California keeps receiving and counting ballots after Nov. 3.
Video: Fox News, "Saturday in America" (Oct. 31, 2026), Acting Deputy Attorney General Trent McCotter
In the same interview, McCotter said Los Angeles County claimed a random sample of about 200 names showed a third were born in the U.S., and that DOJ "double checked" and found "zero" were. That is his claim; The Digital Free Press has not independently verified either figure.
Why the Ninth Circuit Said No
U.S. District Judge David O. Carter of the Central District of California denied the government's request for a temporary restraining order on Oct. 28. On Oct. 30, a Ninth Circuit panel denied an emergency injunction pending appeal in a 2-1 order, with Judges Mark J. Bennett and Gabriel P. Sanchez in the majority.
The majority said the government "failed to meet its burden." It cited the district court's finding that the government "provided 'no error rates' or 'validation against a reliable benchmark'" for its list, and warned of "a material risk that granting the United States its requested relief would result in disenfranchisement and could jeopardize the County's entire election." The panel also relied on the Purcell principle, under which courts should not "alter the election rules on the eve of an election."
The Dissent and What Comes Next
Judge Patrick J. Bumatay dissented. "The federal government proposes a modest remedy—stopping California from mixing the ballots of citizens and suspected noncitizens. This solution would not cancel any vote but would allow time to verify the eligibility of suspected noncitizens," he wrote, calling it a "reasonable request."
The Supreme Court had not acted on the application as of publication, and the underlying case remains pending in the lower courts. Federal law, 18 U.S.C. 611, bars noncitizens from voting in federal elections; California says its own safeguards against noncitizen voting are robust, according to Fox News.
Update (Nov. 2, 2:30 p.m. ET): Asked for comment, the Justice Department's press office referred The Digital Free Press to a post on X by Acting Deputy Attorney General Trent McCotter, which reads: "California has refused to work with the Federal Government to protect against noncitizen voting, which dilutes lawful votes, so @TheJusticeDept has filed an emergency application with the Supreme Court to require California to segregate mail-in ballots associated with more than 20,000 likely noncitizens until their citizenship can be verified. We will continue pursuing every available legal avenue to protect the integrity of our elections and ensure federal law is enforced."
The Digital Free Press has also reached out to the California Secretary of State's office for comment and will update this story with any response.
Sources: Ninth Circuit order, United States v. California, No. 26-7231 (Oct. 30, 2026), https://cdn.ca9.uscourts.gov/datastore/opinions/2026/10/30/26-7231.pdf ; Fox News, "Justice Department asks Supreme Court to block California ballot ruling" (Nov. 2, 2026), https://www.foxnews.com/politics/doj-appeals-supreme-court-reverse-block-segregating-20k-california-ballots ; Fox News, "Saturday in America" interview with Acting Deputy Attorney General Trent McCotter (Oct. 31, 2026), https://www.foxnews.com/video/6407714826112 ; 18 U.S.C. 611.
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