Supreme Court denies Justice Department bid to make California set aside mail ballots

As of 7:25 a.m. ET, Tuesday, Nov. 3, 2026

Update (Nov. 3, 2026, 7:25 a.m. ET): This story has been updated with the Supreme Court's Nov. 2 denial of the Justice Department's emergency application; Judge David Carter's Oct. 28 ruling and the Ninth Circuit's Oct. 30 ruling in the same case; a Nov. 2 injunction by Chief U.S. District Judge James E. Boasberg in a separate case; Ninth Circuit orders in a third case over federal letters to election officials; and federal charges against six more people in Los Angeles County. Reporting from Oct. 26–27 on the appeals court's first dismissal follows.

Supreme Court denies Justice Department's request

The Supreme Court on Monday, Nov. 2, denied the Justice Department's emergency request for an order requiring California to set aside mail ballots from more than 20,000 people the federal government says are likely noncitizens. "The application for injunction pending appeal presented to Justice Kagan and by her referred to the Court is denied," the court's docket in United States v. California, No. 26A624, says. The unsigned order gave no reasons, and no dissents were noted, SCOTUSblog and CNBC reported.

Solicitor General D. John Sauer had asked the justices that morning to require California to keep those ballots separate until the voters' citizenship could be verified. "Once California commingles the challenged ballots with lawful ones, there is no way to get the challenged ballots back," Sauer wrote, according to SCOTUSblog. California Attorney General Rob Bonta told CNBC the denial was "completely appropriate, very expected," calling the government's request "a Hail Mary."

The application followed two more setbacks for the government in the case after the appeals court dismissed its first appeal on Oct. 26, as described below. On Oct. 28, U.S. District Judge David Carter in Los Angeles denied the government's request for a temporary restraining order and questioned the credibility of its allegations that the voters it had identified were not citizens, SCOTUSblog reported. On Oct. 30, a divided Ninth Circuit panel rejected the government's emergency motion. "There is a material risk that granting the United States its requested relief would result in disenfranchisement," Judges Mark Bennett and Gabriel Sanchez wrote, according to NPR and CNBC. Judge Patrick Bumatay dissented, NPR reported.

Judge bars federal demands to set aside California ballots

Separately on Monday, Chief U.S. District Judge James E. Boasberg in Washington, D.C., preliminarily barred the federal defendants and their agents "from issuing demands to California elections officials to compel the segregation of ballots, or other deviations from existing state elections procedures, based on voters' inclusion on the lists of suspected non-citizens," according to his order in a lawsuit brought by the Coalition for Humane Immigrant Rights and a California voter against the Department of Homeland Security and other federal defendants. The order granted the plaintiffs' request in part and denied it in part.

Boasberg found that the administration likely violated the Constitution, which gives states and Congress, but not the executive branch, authority over election rules, Axios reported. He also found credible an expert who identified at least 22 of the coalition's members, all known U.S. citizens, on the federal list. The order did not bar federal officials from investigating illegal voting or compiling lists of suspected noncitizens, according to Axios, which said DHS and the Justice Department did not immediately respond to requests for comment.

Ninth Circuit vacates panel ruling in separate case over federal letters

In a third case, the Ninth Circuit late Monday granted the government a stay of a temporary restraining order issued Oct. 30 by U.S. District Judge Trina Thompson in San Francisco, then vacated that ruling hours later. Thompson's order, in a lawsuit brought by the Service Employees International Union, the American Federation of State, County and Municipal Employees, the League of United Latin American Citizens and the NAACP, barred the government from making further requests that state and county election officials "sequester" the ballots of voters it believed to be noncitizens, and from "threats" of prosecution, according to the appeals court's description of it. The plaintiffs challenged letters federal officials sent to election officials in California and Washington.

A three-judge panel granted the stay 2-1 in an order written by Judge Carlos Bea, with Judge Consuelo Callahan in the majority and Chief Judge Mary Murguia dissenting. In a later order, Murguia wrote that "upon the vote of a majority of nonrecused active judges," the case will be reheard en banc, before a larger panel of the court, and that the three-judge panel order "is vacated." The two-page order did not elaborate. Both orders are listed on the Ninth Circuit's opinions page.

Six more charged in Los Angeles County

Also on Monday, federal prosecutors in Los Angeles announced charges against six more people, all lawful permanent residents living in Los Angeles County, in what they call Operation Protect the Vote. Each is charged with making false statements on naturalization applications. Prosecutors allege that the six registered to vote by falsely claiming U.S. citizenship, voted in one or more elections between 2020 and 2026, and later denied on naturalization forms that they had ever claimed citizenship or registered to vote, according to a Justice Department release. The charges are accusations; the defendants are presumed innocent unless proven guilty.

The new cases bring to 34 the number of people charged in the operation, the Justice Department said, KESQ reported. First Assistant U.S. Attorney Bill Essayli said at a news conference that the six were among the more than 20,000 people on the federal list, the New York Post reported. "Our goal is not to charge all 20,000 people. Our goal is to get California to not count the votes of non-citizens," Essayli said, according to the Post.

Oct. 26: Appeals court dismisses first appeal

A federal appeals court on Monday, Oct. 26, dismissed the Justice Department's emergency bid to force California and Los Angeles County to set aside mail ballots from more than 20,000 people the federal government identified as likely noncitizens, ruling 2-1 that it lacked jurisdiction over the appeal.

The U.S. Court of Appeals for the Ninth Circuit said the United States "failed to allow the district court adequate opportunity to consider its application for a Temporary Restraining Order." The panel granted Los Angeles County's motion to dismiss the appeal and denied the government's emergency motion as moot, according to the unsigned order. Judges Mark Bennett and Gabriel Sanchez wrote concurrences; Judge Patrick Bumatay dissented.

The ruling sends the dispute back to U.S. District Judge David Carter in Los Angeles, who set a hearing on the government's request for Tuesday, Oct. 27, and has committed to ruling promptly afterward, the order said. The Nov. 3 election was then a week away.

What the majority said, Oct. 26

According to the order, the government asked the district court in its Oct. 21 filing for a ruling by Nov. 3. After the county disclosed that it had processed more than 331,000 mail ballots since Oct. 5, the government asked late that night for a ruling by noon Oct. 22, then appealed when none came, calling the court's inaction a "constructive denial."

"The United States's claimed emergency, at least in part, is a self-constructed one," the majority wrote, citing the government's "own delay in filing suit" and in "communicating to the court its desired relief."

The dissent, Oct. 26

Bumatay wrote that the appeals court had jurisdiction and that federal law preempts California's handling of the ballots. "We should've enjoined it from accepting and processing ballots likely cast by aliens until their citizenship could be verified," he wrote.

The underlying case

The Justice Department sued California on Oct. 15, alleging state officials are knowingly facilitating noncitizen voting by mailing ballots to all registered voters, as state law requires, and refusing to set aside ballots from people on a federal list, the order said. Those claims are allegations that have not been decided; California officials dispute them. GROKsiNEWS.com previously reported on the Justice Department's warning to Los Angeles election officials and on federal charges against 28 people in a separate California noncitizen-voting sweep.

What is not known

It is not known whether the government will appeal Boasberg's injunction or seek Supreme Court review in the SEIU case, when the full Ninth Circuit will take up that case, or how many people on the federal list cast ballots that have been processed. GROKsiNEWS.com has not read Boasberg's memorandum opinion or the full Carter and Oct. 30 Ninth Circuit rulings; details of those are as reported by the outlets cited. The Supreme Court did not explain its order.