In the space of eleven days, the Justice Department asked three levels of the federal judiciary to stop California from counting roughly 20,000 mail ballots before Election Day. It lost at every level. On Friday, 6 November, it stopped asking. A notice of voluntary dismissal filed in federal court in Los Angeles ended a lawsuit that had become the sharpest test yet of a simple question: when Washington believes ineligible people are voting, who decides whether their ballots are counted?
The answer the courts gave was consistent, and it came from judges appointed by presidents of both parties. States run elections. The federal government may investigate and prosecute people who vote illegally, but it cannot order state officials to set ballots aside on the strength of a federal list. Here is how the cases unfolded, and why the fight is not quite over.
The California dispute began with a list. According to the Ninth Circuit's account of the record, federal officials compiled what they described as "high-confidence" noncitizens registered to vote in California and sent the list to state and Los Angeles County officials on 12 October. They asked that the mail ballots of everyone on it be sequestered so citizenship could be checked before the ballots were separated from their envelopes and counted. The state refused, citing doubts about the list's accuracy.
On 15 October the United States sued Secretary of State Shirley Weber and the Los Angeles County registrar, Dean Logan. The legal theory rested on the Supremacy Clause and on 18 U.S.C. 611, the federal statute that makes it a crime for a noncitizen to vote in a federal election. If federal law forbids such votes, the government reasoned, a state that knowingly counts them is acting unlawfully, and a court should step in before the damage is done.
What followed was a rapid sequence of defeats. On 26 October the Ninth Circuit dismissed the government's first emergency appeal, finding it had no jurisdiction because the department had tried to go around the district court. On 28 October U.S. District Judge David O. Carter, a Clinton appointee, denied a temporary restraining order. On 30 October a divided Ninth Circuit panel refused an injunction pending appeal. On 2 November, the day before the election, the Supreme Court denied the government's emergency application in a one-line order with no noted dissents.
Judge Carter's ruling set the tone. "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," he wrote, according to Courthouse News Service. He added that "California and its people are sovereign, too." He also questioned the list itself, citing a Nevada effort in which about 16,000 names shrank to 185 registered voters, all of them citizens.
The appeals court framed the issue around the Constitution's Elections Clause, which gives states the power to set the times, places and manner of elections, subject to changes made by Congress. "If the United States believes different procedures are necessary for vote-by-mail ballots," the majority wrote, "it should take that suggestion to Congress, not the courts." The majority was formed by Judge Mark Bennett, a Trump appointee, and Judge Gabriel Sanchez, a Biden appointee.
The administration's argument deserves a fair hearing. In a 19-page filing at the Supreme Court, Solicitor General D. John Sauer argued that because federal law bars noncitizens from voting, "any ballot cast by an alien is unlawful," according to SCOTUSblog. His central point was practical rather than abstract. "Once California commingles the challenged ballots with lawful ones," he wrote, "there is no way to get the challenged ballots back." Sauer also noted that segregating challenged ballots is a familiar remedy in election disputes and that California law itself contemplates it.
Judge Patrick Bumatay, a Trump appointee, dissented from both Ninth Circuit rulings on similar grounds. Federal courts, he wrote, have long enjoined state action that violates the law, and "common sense also tells us that the federal government shouldn't have to sit on its hands while a state allows the violation of federal law." It is the clearest statement of the conservative legal case, and it is likely to resurface.
The weakness in the government's position was not its legal principle. Nobody in these cases argued that noncitizens may lawfully vote in federal elections. The weakness was the evidence. In a separate case in San Francisco on 2 November, U.S. District Judge Trina Thompson asked Assistant U.S. Attorney Kenneth Kao whether the government's list had a high error rate. "I think that's a fair statement," Kao replied, according to Courthouse News Service, while pointing to the department's attempts to work with California on verification.
That case, brought by the Service Employees International Union, the AFL-CIO and other groups, concerned letters sent to county election offices that warned of possible criminal liability if officials processed ballots of people on the list. Thompson had issued a temporary restraining order barring the department from threatening, intimidating or coercing local election officials nationwide over those ballots. In her order refusing to pause it, she wrote that the letters left election workers fearing prosecution "for failing to comply with the questionable lists of noncitizens" created with the help of artificial intelligence.
Bill Essayli, the first assistant U.S. attorney in Los Angeles, wrote on X that "conducting criminal investigations is a core function of the executive branch, not the judiciary," according to Fox News. For a few hours on the night of 2 November, a three-judge Ninth Circuit panel agreed with the department and paused Thompson's order. The full Ninth Circuit then vacated that ruling and ordered the case reheard by its 11 active judges, which restored the restrictions.
Then came the election. Democrats flipped at least 40 House seats and at least seven Senate seats, according to SCOTUSblog, giving them control of both chambers in January. Three days later the Justice Department filed its dismissal. The notice, posted by the California attorney general's office, argued that by the time of a preliminary injunction hearing set for 13 November, the challenged ballots would already be mixed with lawful ones, so the relief it wanted was no longer available. It said the department "is evaluating how to best ensure that American votes are protected, including by preventing vote dilution by noncitizens."
California's attorney general, Rob Bonta, offered a less charitable reading. Judge Carter had appointed a special master to examine how the Homeland Security list was built before that 13 November hearing. "Rather than face that scrutiny, it chose to drop its case," Bonta said in a statement. The union plaintiffs in San Francisco dropped their own suit the same day, Courthouse News reported, though Thompson's restraining order remains in force until 5 p.m. on 13 November.
The fight has not ended. It has moved north. Shortly before the election, the two U.S. attorneys in Washington state, Charles Neil Floyd and Pete Serrano, alleged that at least 405 noncitizens on the state's rolls had voted upward of 1,500 times in elections going back decades, the Washington State Standard reported. Floyd called the list "only the tip of the iceberg," according to NBC News, and the department gave the state 24 hours to review it and asked that ballots be set aside.
Secretary of State Steve Hobbs, a Democrat, refused. He said the federal list included citizens and lacked proof, and he called the department's letter a "dumpster fire disguised as a legal document." ABC News reported that one entry on the list dates to 1994. On Thursday, 5 November, U.S. District Judge Jamal Whitehead, a Biden appointee, issued a two-week order barring the department from demanding that officials set ballots aside or threatening them with prosecution for counting votes as state law requires. "Voters who followed the rules should not lose their votes to a list that even its authors admit may include citizens," he wrote.
Whitehead's order turned on a distinction the Ninth Circuit had drawn in earlier rulings: federal officials may ask a state to set ballots aside, but they may not compel it. The judge found that in Washington the government was not merely asking. A Justice Department spokesperson, Kiersten Pels, said a temporary restraining order "is not a final ruling on the merits" and that the department would keep defending its authority to work with states on voter rolls. A hearing on a longer injunction is set for 18 November. Counties must certify by 24 November and the state by 3 December.
Every court in these cases noted that the government remains free to prosecute people who vote illegally. The department is doing so. Fox News reported that Attorney General Todd Blanche announced charges against 63 people for election crimes on 2 November, and that the department has charged 195 noncitizens in 25 states with voting and registration offenses over nine weeks. Each must be proved in court.
That contrast is the heart of the matter. Prosecution targets a specific person, on specific evidence, with due process attached. Sequestering ballots on the basis of a list affects everyone whose name is on it, including citizens who appear there by mistake, and it happens before anyone has had a chance to contest the label. The courts concluded, in effect, that the second approach shifts the cost of the government's errors onto eligible voters. When the government's own lawyer concedes a high error rate, that cost is not hypothetical.
Supporters of the administration see the outcome differently. In their view, the courts have created a trap in which federal officials must watch ballots they believe are unlawful be counted and can act only afterwards, when the votes can no longer be retrieved. That frustration points to a real gap. If voter rolls contain ineligible names, the durable fix lies with better data shared through lawful channels and with Congress, which the Constitution allows to alter state election rules. It does not lie with an emergency injunction filed days before Election Day.
Open questions remain. The full Ninth Circuit could still rule on the warnings to election officials, Washington's case will test the ask versus compel line, and the department says it is still weighing how to address what it calls vote dilution.
For now, the record of the past fortnight is unusually clear for an area of law that is often murky. A district judge appointed by Bill Clinton, a Ninth Circuit majority that included a Trump appointee, and a Supreme Court with six Republican appointees all declined to let the executive branch reach into a state's ballot count on the eve of a national election. Whatever the next round brings, that is the baseline from which it will start.