Appeals court rejects Trump administration's second bid to block 20,000 California ballots

A federal appeals court on Friday rejected, for the second time in less than a week, a Trump administration request to stop California from counting mail ballots cast by roughly 20,000 voters the government contends may not be U.S. citizens, leaving the dispute unresolved four days before Tuesday's midterm elections.

A three-judge panel of the U.S. Court of Appeals for the Ninth Circuit voted 2-1 to deny the Justice Department's request for an injunction that would have required California election officials to segregate the disputed ballots while the government's appeal moves forward. Judges Mark Bennett, a Trump appointee, and Gabriel Sanchez, a Biden appointee, formed the majority; Judge Patrick Bumatay, also a Trump appointee, dissented.

A two-week legal sprint

The fight began on October 15, when the Justice Department sued California and Los Angeles County, demanding that officials identify and withhold from the vote count mail ballots returned by people on a list the Department of Homeland Security compiled from public voter data. DHS told the state the list contained roughly 20,000 "likely noncitizens." California's elections chief, Secretary of State Shirley N. Weber, responded the same day in a letter to the department saying it had not provided evidence or a stated methodology for the list and was "demanding unprecedented measures" weeks before the election. Attorney General Rob Bonta said the state would not withhold the ballots.

The case has moved on an accelerated, almost daily schedule since. On October 26, the same Ninth Circuit panel first turned away the government's bid, ruling 2-1 that it lacked jurisdiction to intervene because the Justice Department had not given the district court, led by U.S. District Judge David O. Carter in Los Angeles, adequate time to rule. The majority wrote that the government's claimed emergency was, "at least in part," a "self-constructed one," noting the department had known about its concerns for months before suing with the election already underway.

Carter held a hearing the next day, on October 27, and on Wednesday, October 28, denied the department's request for a temporary restraining order outright. He wrote that ordering California to set aside the ballots "violates longstanding constitutional principles mandating that states have control over their elections," and warned that granting last-minute relief could let "either party create chaos for their own political purposes." Carter also said he could not find the government's list-making process "credible," pointing to vague descriptions of how names were flagged. Los Angeles County had separately urged the appeals court to throw out the case entirely in an emergency motion filed days earlier.

The Justice Department appealed again within a day, asking the Ninth Circuit for an injunction pending appeal. The panel's Friday ruling denied that request as well, with the majority writing that the government had not shown "such extraordinary relief, during an ongoing election," was clearly required by law, and that there was "no feasible way to identify and segregate the ballots of specific individuals" without risking disruption to the broader vote count.

Numbers that kept shrinking

Much of the dispute has centered on how reliable the government's list is. Carter's written order noted that DHS had claimed in July that California had closer to 200,000 noncitizens on its voter rolls, a figure that fell to roughly 20,000 by the time the lawsuit was filed in October. A parallel episode in Nevada, cited in court filings and in reporting on the ruling, showed a similar pattern: the administration's initial list of 15,903 suspected noncitizen voters there was cut to 6,218 and then, after manual review, to 185. Nevada election officials said all 185 were in fact citizens.

California officials have made similar objections throughout the case, saying the DHS list includes people who appear to be citizens and that the department has not disclosed how names were matched or verified. Immigrant rights groups that intervened in the case said their own review found dozens of U.S. citizens among those flagged.

"The United States's claimed emergency, at least in part, is a self-constructed one."

That line, from the Ninth Circuit's October 26 order, became something of a refrain in later filings, with California's lawyers and Carter both pointing back to it as the government pressed its case a second and third time in barely a week.

Who is affected, and who is reacting

The roughly 20,000 voters named on the list are spread across California, a state that will send 52 members to the House on Tuesday and where several competitive congressional districts could help determine House control. The litigation does not identify the affected voters by name in public filings, and election officials have said they have no indication how many of the flagged ballots have actually been returned.

Governor Gavin Newsom called the lawsuit a "sad, desperate attempt" by President Trump to suppress California voters. Kristen Clarke, general counsel for the NAACP, which joined the case on the side of California and Los Angeles County, told NBC News that the Justice Department had "sought to throw out the voices of more than 20,000 Californians without credible evidence." The Justice Department did not respond to requests for comment after either the October 28 or October 30 rulings, according to news organizations, including Al Jazeera, that sought comment both times.

In his dissent from the Friday ruling, Judge Bumatay argued the government's requested remedy was "modest" and that federal and state officials could have worked together to verify the names without disrupting the broader count. "We should have let them try," he wrote. Bumatay also dissented from the October 26 ruling, arguing federal law barring noncitizens from voting gave the government grounds to act.

What happens next

The underlying lawsuit remains pending before Carter, who has pointed to California's December 3 certification deadline as the outer boundary for resolving the dispute, well after Tuesday's vote. With two losses at the Ninth Circuit in five days, legal analysts tracking the case have said the Justice Department is expected to seek emergency intervention from the Supreme Court, though as of Friday evening the department had not said publicly whether it would do so or confirmed any filing.

Unless a higher court intervenes before polls close, California's roughly 20,000 disputed mail ballots will be processed under the state's normal procedures alongside millions of others cast ahead of Tuesday's election, which will decide control of the House, a number of competitive Senate races and governorships across the country. Similar federal lists sent to other states, including Nevada and Washington, have drawn comparable pushback from state election officials, suggesting the California case may not be the last word on the administration's approach before Election Day.