Federal Judge Hears DOJ Bid Today to Set Aside Mail Ballots of 20,000 Californians It Calls 'Likely Noncitizens'
A federal judge in Los Angeles hears arguments Tuesday on the Justice Department's request to temporarily set aside the vote-by-mail ballots of more than 20,000 Californians that federal agencies have flagged as "likely noncitizens," a label California says rests on unreliable data.
U.S. District Judge David O. Carter has scheduled oral argument for 1 p.m. Pacific time (4 p.m. Eastern), according to the hearing notice on the state's latest court filing. In an Oct. 23 order, Carter wrote that the court "will rule promptly after hearing from the Parties at oral argument on Tuesday, October 27, 2026." The hearing comes exactly one week before Election Day.
What DOJ Wants Done With the Mail Ballots
The Justice Department sued the State of California, Secretary of State Shirley N. Weber and Los Angeles County Registrar-Recorder Dean C. Logan on Oct. 15 in United States v. State of California, No. 2:26-cv-12025. In its application for a temporary restraining order, the department asks the court to order California "to set aside vote-by-mail ballots from likely noncitizens in the federal election" until each voter's citizenship status can be determined.
The department argues that federal law makes it a crime for noncitizens to vote in federal elections and that California "is knowingly facilitating violations of federal law" by planning to count those ballots without first checking citizenship. It asked for a ruling "by November 3, 2026, before the end of voting in the 2026 federal election." The department says the relief is narrow and that state rules already allow challenged ballots to be segregated.
How the Federal Government Built Its List
According to the department's filing, which The Digital Free Press reviewed, agencies within the Department of Homeland Security obtained what appeared to be California's 2026 voter roster and ran it through a multistep matching process. U.S. Citizenship and Immigration Services and Homeland Security Investigations narrowed a preliminary list of more than 175,000 possible noncitizen voters to more than 20,000 people the government says are registered in California, were sent a mail ballot and are "highly likely to be noncitizen aliens."
The filing says the list was delivered to the Los Angeles County registrar and made available to the secretary of state on Oct. 13, and calls it "the floor" of possible noncitizen voters, with a separate batch of more than 17,000 records still under review. Those are the federal government's characterizations; none of the people on the list has been found by a court to be a noncitizen.
The department also points to criminal cases: it says all of the noncitizens whose arrests it announced Oct. 19 on charges of illegally registering and voting appear on the list given to California. The Digital Free Press reported on those charges Monday.
California's Response
California, represented by Attorney General Rob Bonta's office, calls the government's claim "specious." In a supplemental opposition filed Oct. 24, the state said a Los Angeles County sampling of the federal list found that fewer than half of the sampled people have active voter registrations, more than a third have canceled registrations, nearly three-quarters have never voted, and more than a third of those whose birthplace was recorded said they were born in the United States.
"This initial analysis of the data demonstrates precisely why it cannot be used during an ongoing election to disenfranchise voters—the data simply cannot be trusted," the state wrote. It argued that the government "implicitly concedes the unreliability of its own list" by calling the voters "likely noncitizens" and asking for their citizenship to be confirmed.
The state also argues that the federal government lacks standing and a legal basis to sue, that the order it wants would violate the federal ban on removing voters from the rolls within 90 days of a federal election as well as the Voting Rights Act and state ballot-secrecy rules, and that courts should not change election rules after voting has begun. It says Weber told federal officials she would "welcome the opportunity to review" any proof that specific voters are ineligible. In its Oct. 25 reply, the Justice Department said California "does not refute that it will tabulate ballots from individuals charged with federal voting crimes."
The Appeals Court and the Counties
The Justice Department tried to get a faster ruling from the 9th U.S. Circuit Court of Appeals, which held a rare Sunday hearing. On Monday, two of the three judges on the panel declined to act, writing that the federal government "failed to allow the district court adequate opportunity to consider" its request, the Orange County Register reported. During Sunday's argument, Judge Mark Bennett, a Trump appointee, questioned the request. "This lawsuit is about, 'We don't like the way you're sorting citizens from non-citizens,'" he said, according to the Register.
Gov. Gavin Newsom praised the appeals court's decision and accused President Donald Trump of trying to interfere in elections "so he can stay in power," the Register reported.
Federal prosecutors have since sent similar letters to other California counties. Orange County officials said the department asked them to review the citizenship of 1,754 people within 48 hours but delivered the letter and a USB drive to the county clerk-recorder instead of the registrar of voters, the Register reported. San Bernardino County confirmed it was asked to set aside about 1,100 mail ballots. "Bottom line is, we don't want non-citizens to be voting in this election, but at this point we don't know how reliable their list for Orange County is," Orange County Registrar Bob Page told the Register.
Carter previously dismissed a separate Justice Department lawsuit seeking California's full voter registration list, according to the Register. The Digital Free Press will update this story when the judge rules.
Images: First Street U.S. Courthouse, Daniel L. Lu, Wikimedia Commons, CC BY-SA 4.0; Mendocino County ballot drop box, Sarah Stierch, Wikimedia Commons, CC BY 4.0.
Yossi Schmidt, Founder and Editor-in-Chief, The Digital Free Press
Hold Everyone Accountable.
Sources: U.S. District Court for the Central District of California, United States v. State of California, No. 2:26-cv-12025-DOC-ADS: Memorandum in Support of Plaintiff's Ex Parte Application for Temporary Restraining Order (Doc. 62-1), filed Oct. 21, 2026: https://storage.courtlistener.com/recap/gov.uscourts.cacd.1043513/gov.uscourts.cacd.1043513.62.1.pdf ; Civil Minutes, Order Reiterating Briefing Deadlines (Doc. 85), Oct. 23, 2026: https://storage.courtlistener.com/recap/gov.uscourts.cacd.1043513/gov.uscourts.cacd.1043513.85.0.pdf ; State Defendants' Supplemental Opposition (Doc. 97), filed Oct. 24, 2026: https://storage.courtlistener.com/recap/gov.uscourts.cacd.1043513/gov.uscourts.cacd.1043513.97.0.pdf ; United States' Reply (Doc. 100), filed Oct. 25, 2026: https://storage.courtlistener.com/recap/gov.uscourts.cacd.1043513/gov.uscourts.cacd.1043513.100.0.pdf ; Complaint (Doc. 1), filed Oct. 15, 2026: https://storage.courtlistener.com/recap/gov.uscourts.cacd.1043513/gov.uscourts.cacd.1043513.1.0.pdf ; Orange County Register, "DOJ case requesting mail ballots of 'likely noncitizens' in California be temporarily set aside to be heard in court Tuesday," Oct. 26, 2026: https://www.ocregister.com/2026/10/26/doj-case-requesting-mail-ballots-of-likely-noncitizens-in-california-be-temporarily-set-aside-to-be-heard-in-court-tuesday/ ; The Digital Free Press, "DOJ Charges 48 Noncitizens With Election Crimes; All 28 in California Were on Federal 20,000-Name List": https://www.thedigitalfreepress.com/post/doj-charges-48-noncitizens-election-crimes-five-states
Comments