President Donald Trump speaks during a dinner in the Rose Garden of the White House, Thursday, Sept. 17, 2026, in Washington (AP Photo/Alex Brandon).
The U.S. Department of Justice on Thursday asked the U.S. Court of Appeals for the 9th Circuit to intervene in a dispute with California over an eleventh-hour request to throw out or set aside vote-by-mail ballots that could be cast by some 20,000 people in the Golden State.
The litigation has been fast-paced in the late-game lawsuit — California counties began sending out vote-by-mail ballots weeks ago and many have already been returned — but for the Trump administration, things have not been moving fast enough.
Though the deadline for statewide release of mail ballots was Oct. 5, the lawsuit was filed on Oct. 15, two days after the DOJ provided elections officials with a list of purported "likely noncitizen" voters, many of whom live in Los Angeles County. When local officials declined the federal push to have those names removed from voting rolls, the DOJ alleged the state was "knowingly" facilitating "unlawful voting."
California responded and urged dismissal of the lawsuit by noting that the 2026 midterm election was already "well underway."
On Oct. 19, the federal government filed an emergency ex parte application for injunctive relief — including a temporary restraining order and a preliminary injunction. This request came in addition to an earlier request from the DOJ "to enjoin the state of California from continuing to send and tabulate vote-by-mail ballots cast by ineligible noncitizens to illegally participate in federal elections."
That emergency request later came with a time limit, of sorts, for the judge overseeing the case. On Oct. 21, the Trump administration asked U.S. District Judge David O. Carter, a Bill Clinton appointee, to rule on its emergency request "by noon" on Oct. 22.
In its expedited ruling request, the government softened its theory of the case — and its underlying demands — a bit.
"The United States does not seek to remove voters from the rolls," the expedited ruling request reads. "It simply wants to work with State and County officials to segregate the ballots of suspected non-citizens to ensure that only eligible votes are counted, and that United States citizens are not disenfranchised by illegal votes."
To hear the DOJ tell it, California election officials "contend they lack both the mechanisms and the legal authority to prevent non‑citizens from casting ballots in the November 2026 federal election, and that their current ballot‑processing practices render votes anonymous and permanently untraceable once opened."
"These concessions establish not only the immediacy of the threat to the integrity of lawful votes, but also the irreversibility of the harm unless this Court intervenes at once," the request continues. "As Defendants continue processing ballots that cannot later be segregated or verified for eligibility, the dilution of lawful votes accelerates in real time."
The motion goes on:
This is an emergency. Every minute of processing that occurs without segregating the ballots of suspected non-eligible voters causes untraceable disenfranchisement and dilution of the votes of United States citizens[.]Once an unlawful vote is processed, it cannot be undone if it is later discovered that the voter was ineligible. There is no un-ringing the bell, which is ringing as we speak. Absent a temporary restraining order, lawful votes of United States citizens are permanently diluted. The United States respectfully requests this Court rule on its emergency ex parte application for temporary restraining order to preserve the status quo and prevent dilution of votes[.]
But that unilateral deadline passed — without a ruling.
On Thursday night, the DOJ filed notice with the district court that it would appeal to the 9th Circuit. That appeal was not immediately publicly available.
"Given the critical and exigent nature of the relief sought, the Court's silence is a constructive denial of the United States' emergency application for preliminary injunctive relief…which has the practical effect of denying a preliminary injunction," the notice reads. "Accordingly, the United States hereby appeals the constructive denial of an injunction to the Ninth Circuit Court of Appeals."
On Friday, the DOJ filed for yet another injunction with the district court — using the government's forthcoming appeal to the 9th Circuit as the basis to request an injunction pending appeal.
"An injunction pending the outcome of that appeal is warranted," the latest motion reads. "The United States brings this application on an ex parte basis because, as described in the memorandum filed herewith, every minute of processing that occurs without segregating the ballots of suspected ineligible voters causes untraceable disenfranchisement and dilution of the votes of United States citizens. Once illegally cast ballots are counted and commingled with lawful votes, the resulting harm is impossible to remedy."