More than 20,000 California mail ballots the Justice Department tried to pull from the midterm count are being counted anyway, and two federal courts have refused to stop them.
The Justice Department asked the U.S. Supreme Court on Monday, Nov. 2, 2026, the day before the midterms, to order California to separate the disputed ballots and leave them uncounted until the voters behind them are verified as citizens.
Department lawyers asked the justices for a “limited injunction” while the case plays out, one that would direct the state to “stop commingling suspected illegal ballots with legal ones.” “Once illegally cast ballots are counted and commingled with lawful votes, the resulting harm is impossible to remedy,” the department wrote in the filing.
The 9th U.S. Circuit Court of Appeals had refused on Friday, Oct. 30, to block the ballots, emphasizing California’s power over election procedures. The appeals court pointed to California’s “comprehensive statutory scheme to ensure the integrity of its elections” and said siding with the administration could result in disenfranchisement “and could jeopardize the county’s entire election.”
Never Before in American History
A 26-page ruling issued Wednesday evening, Oct. 28, by U.S. District Judge David Carter turned down the department’s request for a temporary restraining order. Carter had heard the matter a day earlier, on Tuesday, Oct. 27, in Los Angeles federal court. The department had asked him to bar California and Los Angeles County from counting the mail ballots of more than 20,000 registered voters it says are “likely” noncitizens.
Carter, an appointee of Democratic President Bill Clinton, said the last-minute demand ran against the constitutional principles that leave elections in the hands of the states. “Never before in American history has the federal government, on the eve of an election, sought to coerce a state and local government to abandon their own Constitutional elections procedures and bend to the will of the Executive Branch,” Carter wrote. He warned that a ruling for the Trump administration would “wreak havoc.”
Segregating the ballots this late would have the same effect as purging voters, Carter found, and therefore violate the National Voter Registration Act, which bars changes to voter rolls within 90 days of an election. His order did not name the special master he had said in court he was inclined to appoint; a day later, on Thursday, Oct. 29, he appointed Daniel B. Garrie to help build the factual record and set an expedited hearing for Nov. 13. More than 3.7 million people in California had already voted, and court filings showed more than 500,000 ballots already processed as of that week.
“Once a vote is segregated, lasting harm has occurred,” Carter wrote at the conclusion of his order. The department filed a notice of appeal immediately.
Flagged Voters Who Appear U.S.-Born
The list the department compiled cannot be trusted, state and local officials told the court. Los Angeles County ran a preliminary analysis and found that a large share of the people named on it hold no active voter registration, while some of those flagged appear to be U.S.-born. California told the court its safeguards against noncitizen voting are robust and that the department’s assertions rest on “suspect data.”
The department has never said how many of the more than 20,000 flagged voters actually returned a mail ballot. Officials called the demand unlawful, infeasible and disenfranchising to eligible voters, noting that setting ballots aside days before Election Day would come with voting and mail ballot processing already under way.
A court filing from California Attorney General Rob Bonta, a Democrat, urged the judge to weigh the circumstances behind the demand, warning that more federal interference in the state would follow and that the court should not be pulled into it. He called the ruling an important victory. “But this fight is not over. We will keep fighting to protect California’s elections from unlawful federal interference and get this baseless lawsuit dismissed,” Bonta said in a statement.
The ruling showed the federal government interfering in the election, according to Jonathan Miller, who serves as chief program officer at Public Rights Project and as counsel for Los Angeles County.
The department’s urgency argument rests on the mechanics of counting. Election workers verify signatures on returned mail ballot envelopes, then separate the ballots from the envelopes to protect voter confidentiality — and an ineligible ballot can no longer be retrieved after that. “Every day, more ballots are processed by election officials,” Bill Essayli, the top federal prosecutor in Los Angeles, said in a statement, calling the situation an ongoing emergency that dilutes the votes of American citizens.
The Judge Points to Indictments
Carter wrote that the government already has a remedy: indictments for the crime of voting illegally as noncitizens. Dozens of people have been charged in the past two months with registering or voting without being U.S. citizens, Department officials say, and 28 of those cases are in California.
The department never explained why counting the ballots would impair any prosecution, Carter wrote, and no state is obliged to assist federal officials in investigating and prosecuting crimes. Audits and investigations have shown voting by noncitizens to be extremely rare. President Donald Trump calls it widespread and has repeatedly accused states of failing to prevent it.
From Washington State to Alaska
The department filed the California suit on Oct. 15, one of a string of unprecedented moves in states close to Election Day. A divided 9th Circuit panel had already thrown out a department bid to halt the count on Monday, Oct. 26, before Carter ruled.
Washington state election officials received a request from federal prosecutors the same day to review a list of 400 registered voters they believe are likely noncitizens. A separate department lawsuit in Alaska seeks to stop the state from certifying Senate race results if the Republican incumbent loses because of ballots cast for a similarly named longshot candidate the department accuses of being a spoiler.
With 52 House seats, more than any other state, California remains a Democratic stronghold, and Trump’s Republican Party faces a tight battle to keep control of both chambers of Congress on Nov. 3. Since returning to the White House, Trump has turned California into a focal point of his immigration crackdown, accusing the state of undermining public safety through its sanctuary policies.