The Ninth Circuit dismissed the Justice Department’s emergency appeal over California ballots on Oct. 26, ruling it lacked jurisdiction because the district court had not yet denied the request, according to the order. The unsigned order, United States v. California, No. 26-7070, found that much of the urgency was the government’s own doing. The court said the claimed emergency was “self-constructed,” at least in part. The Justice Department waited from the Oct. 13 delivery of its list of more than 20,000 names to the Oct. 22 appeal, nine days, a calculation from the order’s dates, while Los Angeles County kept counting.
What the Ninth Circuit Decided
The government asked the district court for a temporary restraining order that would stop California from tabulating mail ballots from people it calls likely noncitizens until their citizenship is verified. It first asked for a ruling by Nov. 3, then moved the deadline to noon on Oct. 22. The district court had scheduled a hearing for Oct. 27 and had not ruled by the noon deadline, so the government appealed, arguing the delay amounted to a “constructive denial” under A.A.R.P. v. Trump.
The panel disagreed. It granted the county’s motion to dismiss the appeal for lack of appellate jurisdiction and denied the government’s emergency motion as moot. It distinguished the earlier case on the grounds that the government would not lose access to federal court, since the case continues, and that the harm asserted did not rise to the irreparable level that would justify an interlocutory appeal.
The Timeline of the Appeal
The department sued California, Secretary of State Shirley Weber and Los Angeles County Registrar-Recorder Dean Logan on Oct. 15, the complaint shows. Its single claim says federal law barring noncitizens from voting overrides California’s practice of mailing and counting ballots from the people on the list. The state mailed ballots to all registered voters on Oct. 1. The order says the county began counting Oct. 5 and had processed more than 331,000 ballots.
The case was reassigned to U.S. District Judge David Carter on Oct. 21. Weber’s office has said the Justice Department never gave the secretary of state the list, and Weber said in a statement that federal efforts to reach protected voter data “cause chaos and fuel public distrust.”
What the Concurrences and Dissent Say
Judge Bennett agreed on jurisdiction but wrote that he would also deny the injunction on the merits, reasoning that the federal statute regulates individual conduct rather than state ballot procedures. Judge Sanchez wrote that the Purcell principle, which discourages courts from changing election rules close to an election, bars the injunction because voting has begun.
Judge Bumatay dissented. He wrote that the court had jurisdiction and that the government is likely to prevail on preemption. His central point concerned timing: once a ballot is opened and separated from its envelope, “there is no way to remove that ballot before it’s counted,” so any harm cannot be undone.
The two sides read the same clock differently. The majority counts the days the government waited. The dissent counts the ballots opened each day the court did not act. Judge Carter’s hearing on the temporary restraining order was set for Oct. 27, and the general election is Nov. 3.
