Judges Skeptical as Justice Department Presses California to Set Aside 20,000 Ballots

Introduction

A federal appeals court in California heard an extraordinary emergency case on Sunday, October 25, 2026, just nine days before the November 3 midterm elections, and its judges left the courtroom without a ruling — but with sharp questions for the United States Department of Justice.

The Justice Department wants California to set aside mail-in ballots tied to about 20,000 registered voters whom federal officials describe as likely noncitizens, until their citizenship can be verified. California and Los Angeles County oppose that request, arguing that the federal list is unreliable, that the state has the constitutional authority to run its own elections, and that intervening while voting is already underway would disrupt the democratic process.

The three-judge panel of the United States Court of Appeals for the Ninth Circuit adjourned on Sunday afternoon without deciding the matter, saying it would decide as quickly as possible. A separate hearing before the district judge originally assigned to the case, Judge David Carter, remains scheduled for Tuesday. That timeline matters: ballots are already being processed, and both sides told the court that once a mail-in ballot is processed, it cannot easily be unprocessed.

This article explains what happened in court on Sunday, what each side argued, how the dispute reached an appeals court before the district court had ruled, and what happens next. Where a claim is disputed, it is attributed to the side that made it. Nothing in this article treats a disputed list, a disputed number, or a disputed motive as an established fact.

What the Justice Department Is Asking For

The Justice Department is not, in its own courtroom description, asking the court to throw out votes outright. Justice Department attorney Matthew Donnelly told the appeals panel that the department is asking California to segregate — that is, set aside — mail ballots linked to people on its list while eligibility is reviewed, rather than folding those ballots into the general count.

The department sued California and Los Angeles County earlier in October, seeking to prevent officials from counting more than 20,000 mail-in ballots associated with people the government believes are likely noncitizens. The suit was filed on October 15, according to the New York Post, naming California Secretary of State Shirley Weber and Los Angeles County Registrar-Recorder Dean Logan. Federal prosecutors have also announced criminal charges and arrests tied to the same investigation: Particle News summaries of the filings report charges and arrests involving 28 lawful permanent residents whom the department says appear on the disputed list.

The department's broader argument is that federal law prohibits noncitizens from voting in federal elections, and that allowing ballots from people on its list to be processed and counted before citizenship is checked would cause irreversible harm. Donnelly put that point directly to the panel: "Once a mail-in vote is processed, it cannot be unprocessed, and the damage is irreversible and irreparable."

How the Case Reached the Appeals Court Before a District Ruling

Under the normal course of litigation, an appeals court waits for a district court to rule before it steps in. This case did not follow that course, and two of the three appeals judges pressed the Justice Department on exactly that point.

The Justice Department first filed its emergency request in district court. When Judge David Carter had not ruled by a deadline the department had sought, the department asked the Ninth Circuit to get involved, describing the absence of a ruling as a "constructive denial" of its request, according to Reuters reporting on October 22. The Ninth Circuit then ordered California to respond by noon Saturday to the emergency request.

Judge Mark Bennett, a Trump appointee, and Judge Gabriel Sanchez, a Biden appointee, both questioned on Sunday why the department had appealed before the district court held its hearing. Judge Bennett asked Donnelly directly whether the appeals court needed to rule ahead of the district court hearing scheduled for Tuesday. Donnelly argued that the court should rule as soon as possible because voting is still ongoing and ballots are being processed.

Judge Patrick Bumatay, also a Trump appointee, appeared more sympathetic to the department's position during the hearing, pressing California and Los Angeles County on how noncitizens on the voter rolls are investigated and on the department's suggestion that, without setting ballots aside, California might never learn whether noncitizens voted.

The procedural question is not a technicality. If the appeals panel dismisses the appeal, the case returns to Judge Carter in Santa Ana on Tuesday. If it grants emergency relief, California would have to change how it processes a defined set of ballots while the election is underway. Either way, the panel's decision will land in the middle of an active election — a fact both sides acknowledged in different ways.

The Judges' Skepticism: States Run Elections

The most pointed exchanges on Sunday concerned the Constitution's Elections Clause, which gives states the primary role in determining the manner of elections, subject to Congress's authority to alter state regulations.

Judge Bennett told Donnelly that California appears to have legal authority to handle its elections on its own, and that the existence of a criminal law prohibiting noncitizens from voting does not, by itself, give the Justice Department authority to regulate California's voting process. In Bennett's words, as reported by CNN and the New York Post: "It seems to me that under the Elections Clause, they have the right to determine the manner of the elections, including sorting out noncitizens."

Bennett pressed further: "It seems to me that you want us to issue an injunction that is entirely inconsistent with the law. How can we do that?" He also asked: "How can we, a federal court, do what is reserved to Congress, which Congress, in my view, hasn't done?"

Judge Sanchez joined in questioning the legal basis for federal intervention, and at least two of the three judges disputed the argument that federal law overrides the constitutional allocation of election authority to the states.

Samuel Siegal, the attorney arguing for California and the secretary of state, argued that the Justice Department was asking the court "to short-circuit the democratic process" while California's election was already underway. He added, in remarks reported by both CNN and the New York Post, that if the executive branch wants that authority in the first instance, it needs to ask Congress for it, and it has not done so.

That constitutional argument is likely to be central whatever the panel decides. It is also the reason the case is being watched beyond California: it tests how far a federal administration can go in directing a state's ballot processing in the days before a federal election.

The Reliability Fight: 20,000 Names, 190,000 Names, and a County Sample

Alongside the constitutional question, the judges pressed the Justice Department on a factual question: how reliable is the list of about 20,000 names at the heart of the case?

According to CNN, Donnelly told the court that the administration "was supplied a list that was purchased" from California, and that sworn declarations from Department of Homeland Security officials about their process should be reliable enough to warrant segregating the ballots. He argued that the department is in an emergency because midterm ballots are being counted.

Judge Sanchez responded that the department's claims "very much depend on the reliability of that list," and pressed Donnelly on how the number was reached and why it should be relied upon to take extraordinary action. Sanchez also asked why a July letter from the Department of Homeland Security to Secretary Weber had cited about 190,000 potentially problematic registrants, and what had changed to bring that figure down to 20,000. Donnelly said the drop came from the department's vetting process, and that the July figure came from a list that had not yet been through that review.

California's attorney argued that the list is unreliable, that it is not clear where it came from, and that the data being used was "wildly outdated." Los Angeles County officials, in filings summarized by Particle News, said they are not equipped or authorized to verify citizenship beyond a voter's sworn attestation. A county sample review of 200 names from the federal list, as summarized in those filings, found many registrations canceled or inactive — 112 of the 200, according to one summary — and a substantial share of meaningful birthplace entries showing United States birth, reported as 38.9 percent in one summary and about 39 percent in another.

The Justice Department, for its part, points to the criminal cases as support for its list. It has also said, in filings summarized by Particle News, that United States Citizenship and Immigration Services has identified a separate batch of more than 17,000 records still under review, and that a broader Department of Homeland Security figure of roughly 190,832 potential matches reflects different confidence levels in the data.

Voters reading these competing numbers should note what they are: the department's figures describe people flagged by federal matching processes; the county's sample describes what county officials found when they checked a small subset of those names against their own records. Neither side's summary, on its own, proves how many people on the full list are or are not citizens. That unresolved factual dispute is one reason the judges questioned whether emergency intervention is justified.

What California Officials Say Is Already Happening

California officials told the court that ballot processing is already well underway. CNN reported that Los Angeles County has already processed more than 300,000 midterm ballots. The New York Post, reporting Donnelly's courtroom statement, put the Los Angeles County figure higher, at more than 500,000 ballots processed. The difference between those two reported figures reflects different sourcing in the two outlets' accounts, not a single official total confirmed in this article.

What is not in dispute between the parties is the direction of travel: ballots are being received, processed, and counted while the litigation continues. That is why the Justice Department argues that delay equals irreversible harm, and why California argues that intervention now would disrupt an election already in progress.

California's position, as argued by Siegal, is that voters already take multiple steps to attest to their citizenship when they register, consistent with federal and state law, and that the state should not be ordered to re-verify thousands of voters on the basis of a purchased list whose provenance and accuracy the state disputes. Siegal also argued that California would not be left unable to know whether noncitizens voted, because of those attestation steps — a point Judge Bumatay questioned, asking whether, without an injunction, California would ever know if ballots are tabulated without being separated first.

The Political Fallout: Essayli, Newsom, and Voter ID

Outside the courtroom, the case has become a political flashpoint in California. Bill Essayli, the First Assistant United States Attorney in Los Angeles and a central figure in the filing, spoke to the New York Post after Sunday's hearing adjourned.

"Our concern is that noncitizens are actively voting in this election and California has confirmed they will count their votes. This will corrupt the integrity of the upcoming midterm election," Essayli said. He added: "I think it's absolutely incredible that California just walked into a room with the United States government and said these votes should be counted in the elections. They argued that whether or not they are noncitizens is irrelevant. It dilutes the votes of American voters."

Essayli continued: "We are committed to fighting this because even one noncitizen vote is one too many. They seem completely disinterested in the fact they are tabulating votes from noncitizens."

California Governor Gavin Newsom, according to the New York Post, blasted the Justice Department's efforts as a desperate "clown show" in an exchange on X the day before the hearing. Essayli responded on the same platform, writing, in the Post's account: "Hey Fraud King. We're not waiting for them to vote. You're not allowed to have any noncitizens on your voter rolls. 'Period. Full stop.'"

The hearing also renewed calls for voter identification in California elections. Carl DeMaio, coauthor of Proposition 39, told the Post that voters have been "lied" to about current levels of citizenship verification before ballots are counted, and described the state's handling as a "dereliction of duty." DeMaio argued that Proposition 39 is needed more than ever to force politicians to conduct a proper review of citizenship at the ballot box. California gubernatorial candidate Steve Hilton weighed in as well, telling the Post: "This is typical of everything that's been going wrong in California. We've got a bunch of people in charge who just wont enforce the law."

Those political reactions are attributed claims, not findings of the court. The court has not ruled on whether any noncitizen voted, on whether the federal list is accurate, or on whether California's verification system is adequate. Its only action so far in the appeals case is to hear argument and promise a prompt decision.

Why This Case Matters Beyond California

The California case does not stand alone. CNN noted that it is one of many steps the Trump administration has taken while voting is underway to advance claims about voter fraud. In the past week alone, the Justice Department filed a lawsuit in Alaska seeking to block certification of the election of incumbent Republican Senator Dan Sullivan if he loses, on the grounds that a candidate named Daniel J. Sullivan is also on the ballot — a case already covered separately in this blog's midterm coverage.

The administration has also sent election monitors to Utah and other states, and has sent letters to every county in California requesting help identifying noncitizen voters, giving local officials 48 hours to comply, according to the New York Post. Election-law experts quoted in Particle News summaries have warned that emergency court remedies of this kind are unlikely to succeed, and that they risk intimidating voters, disrupting certification timelines, and triggering broader legal battles — while also noting that prosecuting individual alleged noncitizen voters, where evidence supports it, is a different matter from segregating thousands of ballots.

For voters, the practical significance is narrower and more immediate. The case will decide, in the next few days, whether a defined set of California mail ballots is counted with all other ballots or held apart while eligibility is litigated. It will not decide control of the House or Senate by itself, and it will not change the November 3 election date. But it could affect how quickly California's results are finalized, how much litigation follows certification, and how other states view federal requests to intervene in their own ballot processing.

What Happens Next

Three dates and decisions will shape the next chapter:

First, the Ninth Circuit panel's decision. The panel adjourned Sunday without ruling but said it would decide "as quickly as possible." If it dismisses the appeal, the case returns to district court. If it grants relief, California will have to implement a segregation process mid-election, with all the logistical questions that entails — how ballots are identified, how voters are notified, and how eligibility is verified.

Second, the district court hearing on Tuesday before Judge Carter. That hearing was scheduled before the appeals case and remains on the calendar. It will consider the department's request for an emergency order in the original lawsuit, regardless of what the appeals panel does first, unless the panel's ruling changes the posture of the case.

Third, the ongoing criminal cases. The 28 arrests and charges announced by federal prosecutors will proceed on their own track, with evidence tested in criminal court rather than in emergency civil hearings. Those cases, not the emergency ballot request, are where individual allegations of noncitizen voting will be proved or not proved.

Voters in California who have questions about their own ballot status should check with their county elections office or the California Secretary of State's voter-status tools, rather than relying on news reports about a disputed list. No news report in this case identifies individual voters on the list, and this article does not either.

What's Next for the Midterm Elections

With nine days until Election Day, the California ballot fight is one of several election-administration disputes unfolding while early voting continues nationwide. More than 26 million ballots had already been cast nationally as of October 25, according to earlier midterm coverage, and California is among the states where mail ballots make up a large share of the early vote.

The courts will now decide, under intense time pressure, whether emergency federal intervention in a state's ballot processing is lawful, necessary, and workable. The judges' skepticism on Sunday suggests that the Justice Department faces a steep climb in the appeals court — but skepticism in argument is not a ruling, and the panel's written decision, when it comes, will be the authoritative word.

This blog will update this story when the Ninth Circuit rules and after Tuesday's district court hearing.

Frequently Asked Questions

1. What is the Justice Department asking California to do? It is asking California to set aside — segregate — mail ballots tied to about 20,000 registered voters whom federal officials describe as likely noncitizens, so those ballots are not counted with other ballots while citizenship is reviewed. The department says it is not asking the court to throw out votes outright, but to hold them apart pending verification.

2. Has the court ruled on the request? No. The Ninth Circuit panel heard emergency argument on Sunday, October 25, and adjourned without ruling, saying it would decide as quickly as possible. A district court hearing before Judge David Carter is scheduled for Tuesday.

3. Why did the case go to an appeals court before the district court ruled? The Justice Department asked the Ninth Circuit to intervene after the district court had not ruled by a deadline the department sought, describing the absence of a ruling as a "constructive denial." Two appeals judges questioned that move, noting that the district court hearing had not yet been held.

4. What does California say about the federal list? California's attorney argued that the list is unreliable, that its origin is unclear, and that the data is "wildly outdated." Los Angeles County officials said a sample of 200 names found many registrations canceled or inactive and a substantial share listing United States birthplaces. The Justice Department disputes that characterization and points to Homeland Security declarations and criminal cases as support.

5. Does this case mean noncitizens have voted in California? No finding to that effect has been made by any court in this case. The Justice Department alleges that people on its list are likely noncitizens; California disputes the list's reliability. Individual criminal charges must be proved in criminal court, and the emergency civil case has not decided the underlying facts.

6. What should California voters do? Voters should vote as normal and check their own ballot status through their county elections office or the California Secretary of State. This case concerns a disputed list of about 20,000 registrants; it does not cancel the election, change the November 3 date, or invalidate ballots generally.

Sources: CNN, October 25, 2026; New York Post / California Post, October 25, 2026; Reuters, October 22, 2026; Particle News summaries of Justice Department filings, October 20-21, 2026. All quotations are attributed to the outlet or speaker named in the text.