Appeals Court Again Refuses to Order California to Set Aside Ballots DOJ Flagged as Noncitizen Votes; Groups Sue Over Washington Demand
A federal appeals court on Friday again refused to order California to set aside the mail ballots of about 20,000 registered voters whom federal agencies identified as likely noncitizens, leaving the Justice Department without a court order four days before the Nov. 3 election.
In a 2-1 order reviewed by The Digital Free Press, a panel of the U.S. Court of Appeals for the Ninth Circuit denied the government's emergency motion for an injunction pending appeal. Judges Mark Bennett and Gabriel Sanchez joined the unsigned majority opinion. Judge Patrick Bumatay dissented.
What the Ninth Circuit Decided
According to the order, U.S. Citizenship and Immigration Services and Homeland Security Investigations obtained California's voter roll over the summer and compiled a list of "high-confidence" noncitizens. On Oct. 12 the government gave the list to the state and Los Angeles County and asked them to sequester those ballots so citizenship could be checked before counting. The state and county refused, "expressing doubt about the veracity and reliability of the list," and the government sued on Oct. 15. A district judge denied a temporary restraining order on Oct. 28.
The majority said the government had not shown that the law "clearly" favors its position, the standard for a mandatory injunction. It wrote that nothing in 18 U.S.C. 611, the federal law that makes it a crime for noncitizens to vote in federal elections, "preempts California's comprehensive statutory scheme" for handling citizenship challenges. The panel stressed that it was not ruling that the statute could never preempt state law.
The judges also cited the Supreme Court's Purcell principle against changing election rules close to an election. They noted a Los Angeles County official's sworn statement warning of a "potential catastrophic impact" if the county had to pull specific ballots from its system mid-election.
The Dissent
Judge Patrick Bumatay dissented, writing that the federal government "proposes a modest remedy—stopping California from mixing the ballots of citizens and suspected noncitizens," which he said "would not cancel any vote but would allow time to verify the eligibility of suspected noncitizens."
Bumatay wrote that Los Angeles County "could give no evidence that it independently verifies the citizenship of its voters" at oral argument. He said the county claimed nearly 40% of a sample from the federal list had been born in the United States, but that when the government ran the same sample through its systems, it "confirmed that none were born here." Those are competing claims by the parties, as described in the dissent.
New Lawsuit Over Washington's List
The same day, OneAmerica Votes, the Latino Community Fund of Washington State and the United Food and Commercial Workers International Union sued President Donald Trump, the Justice Department, Homeland Security and federal prosecutors in Seattle. Their complaint, filed by the Elias Law Group, challenges an Oct. 26 letter in which two federal prosecutors gave Washington Secretary of State Steve Hobbs a list of roughly 400 registered voters that federal agencies believe "are or were noncitizens."
According to the complaint, the letter acknowledged those voters "may have subsequently naturalized," asked Hobbs to tell county officials to hold off on verifying or counting their ballots, and gave him 48 hours. The groups say the letter misstated Election Day as Nov. 2 and that prosecutors have said more names could follow.
The plaintiffs claim the demand exceeds federal authority under the Constitution's Elections Clause and violates the Voting Rights Act and the Administrative Procedure Act. They ask the court to declare that election officials who count ballots under state law do not break federal law merely because a voter appears on the government's list.
The government has argued in the California case that counting ballots cast by noncitizens would violate federal law, according to the Ninth Circuit's order. No government response to the Washington complaint was on the public docket as of Saturday night.
Sources: United States v. California, No. 26-7231 (9th Cir. Oct. 30, 2026), order and dissent: https://cdn.ca9.uscourts.gov/datastore/opinions/2026/10/30/26-7231.pdf ; OneAmerica Votes v. Trump, No. 2:26-cv-04223 (W.D. Wash.), complaint filed Oct. 30, 2026: https://www.courtlistener.com/docket/75053712/oneamerica-votes-v-trump/ ; Reuters (Oct. 30, 2026): https://www.reuters.com/world/trump-admin-again-loses-bid-block-california-counting-alleged-noncitizen-votes-2026-10-30/ . Cover photo: James R. Browning U.S. Court of Appeals Building by Sanfranman59 via Wikimedia Commons, CC BY-SA 4.0.
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