Follow-Up: 9th Circuit Rejects DOJ Emergency Appeal 2-1 Over 20,000 California Mail Ballots, Sending Case Back to District Court

SAN FRANCISCO — The U.S. Court of Appeals for the 9th Circuit on October 26 rejected, by a 2-1 vote, the U.S. Department of Justice's (DOJ) emergency appeal seeking an order forcing California to set aside mail ballots cast by more than 20,000 registered voters the federal government alleges are likely noncitizens. The case returns to the U.S. District Court, where a hearing is scheduled for Tuesday, October 27, one week before the November 3 midterm elections.

The three-judge panel ruled after an unusual emergency hearing held by Zoom on Sunday, October 25. Judge Mark Bennett, an appointee of President Donald Trump, and Judge Gabriel Sanchez, an appointee of former President Joe Biden, formed the majority, holding that the appeals court did not have the authority to rule on the DOJ lawsuit before the district court had addressed the matter. "The United States's claimed emergency, at least in part, is a self-constructed one," the majority wrote, adding that at least part of the delay was attributable to the government's own delay in filing suit, in realizing that existing California state law governs the issuance and processing of ballots, in recognizing that California has millions of registered voters and processes ballots on a schedule aligned with that scale, and in communicating its desired relief to the court.

Bennett added that even if the panel had jurisdiction and reached the merits, he would deny the DOJ's emergency motion for several reasons, including that the federal law criminalizing voting by noncitizens cited by the administration does not preempt the state's authority under the Elections Clause of the U.S. Constitution. Sanchez wrote that the proposed injunction "would transform California's election rules for an election that is already underway and would cause widespread confusion among voters and election officials, divert election administration resources, and 'usher in electoral chaos.'" Judge Patrick Bumatay, also a Trump appointee, dissented, writing that "California's actions must be preempted" and saying he would have granted the DOJ's request.

The case began with a DOJ lawsuit filed on October 15 in federal court in Los Angeles, which asked a judge to order California to separate any ballots received from people on the administration's list of more than 20,000 voters and not count them until their citizenship had been verified. DOJ officials said on October 19 that the list included 28 people who had been criminally charged with illegally voting. After District Judge David Carter did not rule last week on the timetable the DOJ demanded and scheduled a hearing for October 27, the DOJ appealed to the 9th Circuit, arguing the delay amounted to a denial. According to CNN, the district court hearing is set for 4 p.m. ET on October 27.

Lawyers for California Secretary of State Shirley Weber said in an October 20 court filing that "at best, this litigation is a reckless political stunt" and "at worst, it threatens to disenfranchise thousands of Californians this election," and asserted that the DOJ's claims relied on "suspect data." Los Angeles County's registrar-recorder said in a court filing last week that an initial review of a sample of people on the federal list found that around 1 in 4 said they were born in the United States. According to Reuters, the DOJ has sued 30 states and Washington, D.C., for refusing to provide complete voter rolls, and has so far lost 26 of those cases without winning one.

The 9th Circuit's decision sends the case back to the district court, where Judge Carter will take up the DOJ's request for an order blocking the counting of the ballots. The DOJ could escalate further to the U.S. Supreme Court, where Justice Elena Kagan is the justice assigned to handle emergency appeals from the 9th Circuit.

Related: Follow-Up: 9th Circuit Judges Question DOJ Lawsuit to Set Aside California Mail Ballots, Citing Elections Clause

Source: GSM · USA (original Chinese edition)

Photo: 图：位于旧金山第七街与 Mission 街交口的 James R. Browning 美国上诉法院大楼（资料照片），联邦第九巡回上诉法院总部所在地。Sanfranman59 摄，CC BY-SA 4.0，经 Wikimedia Commons 发布。 / The James R. Browning U.S. Court of Appeals Building at 7th and Mission Streets in San Francisco (file photo), headquarters of the U.S. Court of Appeals for the Ninth Circuit. Photo by Sanfranman59, CC BY-SA 4.0, via Wikimedia Commons.

Latest in California

San Diego's Homelessness Response Resources Nearly Double in Seven Years, From 5,924 to 11,5722026-10-31Tijuana River Valley Health Study Seeks Researchers: Up to $250,000 to Examine Disease Rates in Border Communities2026-10-31