In 60 seconds: A federal appeals court on Monday refused to jump ahead of the trial judge in the Justice Department's fight over about 20,000 California mail ballots, sending the case back to district court — where a hearing is set for Tuesday afternoon.
- The 9th Circuit dismissed the DOJ's emergency appeal for lack of jurisdiction — the district court hasn't ruled yet.
- The ruling does not decide whether the ballots can be counted; it only blocks the shortcut to the appeals court.
- Two judges wrote separately that they would have denied the DOJ's request on the merits too.
- A district court hearing is scheduled for Tuesday at 4 p.m. ET — one week before the Nov. 3 midterms.
- The DOJ has said 28 of the 20,000 people on its list were criminally charged with illegal voting.
The marble hallway inside the James R. Browning U.S. Court of Appeals Building in San Francisco, home of the Ninth Circuit. Photo: Wikimedia Commons.
Here's the thing about Monday's ruling: it sounds like a big win for California, and in the short term it is — but read the fine print and it's narrower than the headlines suggest. The court didn't rule that the ballots must be counted. It ruled that the Justice Department asked the wrong court, too soon.
What happened
On Monday, Oct. 26, a three-judge panel of the San Francisco-based 9th U.S. Circuit Court of Appeals dismissed the Trump administration's emergency appeal in its lawsuit over California mail ballots. In a brief unsigned order, joined by Judge Mark Bennett and Judge Gabriel Sanchez, the panel wrote: "We lack jurisdiction over this appeal. So we grant the County's motion to dismiss this appeal and deny as moot the United States's emergency motion for relief."
The Justice Department had asked the appeals court to force California and Los Angeles County to segregate — set aside and not tabulate — vote-by-mail ballots from a list of more than 20,000 registered voters the federal government describes as likely noncitizens, until their citizenship could be verified. The department appealed after a district judge did not rule on its request last week, ahead of Tuesday's hearing.
Latest verified facts
The underlying lawsuit was filed Oct. 15 in the U.S. District Court for the Central District of California, naming the state, Secretary of State Shirley Weber and Los Angeles County Registrar-Recorder Dean Logan as defendants. The government leans in part on 18 U.S.C. Section 611(a), the federal law barring noncitizens from voting in federal elections.
The panel's reasoning was procedural, not a verdict on the ballots themselves. The majority said the United States "failed to allow the district court adequate opportunity to consider" its request for a temporary restraining order before filing what it called an unusual appeal. And it had sharp words for the claimed urgency: "The United States's claimed emergency, at least in part, is a self-constructed one," the majority wrote, pointing to the government's own delay in filing suit and in recognizing that California state law governs how ballots are issued and processed.
Two judges went further in separate concurrences. Judge Bennett, a Trump appointee, wrote that even if the court had jurisdiction, he would deny the emergency motion on the merits — among his reasons, that the federal noncitizen-voting law does not preempt the state's authority under the Constitution's Elections Clause. Judge Sanchez, a Biden appointee, stressed that granting the request would overhaul the state's election system during an active election. Judge Patrick Bumatay, also a Trump appointee, dissented.
One number deserves care. The government has not said how many of the 20,000 people on its list actually submitted a mail ballot. Justice Department officials said on Oct. 19 that the list included 28 people who had been criminally charged with illegally voting. That is the verified figure — not 20,000 illegal votes, and not 20,000 ballots set aside.
Why it matters
This is the first time the Trump administration has sought to prevent a state from counting votes, according to Reuters — and it lands a week before the Nov. 3 midterms, in the country's most populous state. California holds 52 House seats, more than any other state, and Democrats are trying to retake the House. A federal order segregating ballots in California would have been a dramatic precedent, whatever you think of the underlying citizenship question.
The ruling also draws a line that matters beyond this case: even in an election week, the courts expect the government to let the trial judge go first. The appeals court essentially told the Justice Department it cannot leapfrog the district court because the calendar is tight — especially when, in the court's view, some of that tightness is the government's own making.
Impact on the USA and the world
For American voters, the practical effect right now is simple: California's current ballot-counting procedures stay in place, at least until the district court weighs in. For election officials in other states, the case is a warning shot about what federal intervention in vote-counting could look like — and about how courts may receive it when it arrives days before an election.
And for anyone watching from abroad, it's a familiar American story: the fight over who runs elections — states or Washington — playing out in court, in public, and on a deadline. The Constitution gives states the first word on running elections, with Congress setting the outer rules. Monday's order is, at its core, a reminder of that order.
What happens next
Our take: watch Tuesday, not Monday. The case goes back to the district court, where a hearing is scheduled for Tuesday at 4 p.m. ET. That hearing — not the appeals court's procedural dismissal — is where a judge could actually decide whether any ballots get segregated. If the district court rules against the government, the DOJ could appeal again, this time properly, or take the fight to the Supreme Court, where Justice Elena Kagan handles emergency appeals from the 9th Circuit.
Either way, don't expect this to end quietly. The administration has made California the focal point of its immigration crackdown and its election-integrity push, and the midterms are seven days away. The next development to watch is the district court's ruling — and whether the DOJ, having lost the shortcut, decides to run the full race instead. This is a developing story, and we will update it when the district court rules.
Read our earlier coverage: 11 Arrested, 28 Charged: The DOJ's "Operation Protect the Vote" and the California voter-fraud cases. Related: James Comey Charged Again: What the New DOJ Case Actually Alleges.
Sources: CNN, "Appeals court rejects Trump DOJ demand to set aside 20,000 California mail ballots" (Oct. 26, 2026); Reuters, "Trump administration loses push to block California votes from alleged noncitizens" (Oct. 26, 2026); Democracy Docket, "DOJ can't leapfrog lower court in bid to block 20,000 California voters, appeals court rules" (Oct. 26, 2026).