Key Points

  • The Ninth Circuit granted Los Angeles County's motion to dismiss the United States's appeal for lack of jurisdiction and denied as moot the government's emergency motion for an injunction pending appeal.
  • The per curiam order held that the district court's failure to rule within about 15 hours on the government's TRO request was not a constructive denial under A.A.R.P. v. Trump, because the claimed emergency was in part self-created and the government faced no loss of appellate review.
  • Judge Bennett concurred, concluding that even on the merits the government had not shown that 18 U.S.C. § 611 clearly preempts California's election procedures or that the mandatory injunction it sought was warranted.
  • Judge Sanchez concurred, concluding that the Purcell principle would bar the requested injunction because the election is already underway.
  • Judge Bumatay dissented, concluding that the court had jurisdiction, that § 611(a) likely preempts California's commingling of ballots from voters on the federal list, and that Purcell does not apply.

A divided federal appeals court on Oct. 26 threw out the federal government's emergency bid to make California and Los Angeles County set aside the mail ballots of more than 20,000 registered voters whom federal agencies had flagged as likely noncitizens. The court held that the government had appealed too early.

In an unsigned per curiam order, a Ninth Circuit panel ruled 2-1 that it lacked jurisdiction because the trial judge had not refused the government's request for a temporary restraining order, a short-term emergency order, when the government appealed after giving the judge about 15 hours to rule. Judges Bennett and Sanchez joined the order, and each wrote separately that relief would fail even if the court had jurisdiction. Judge Bumatay dissented.

The ruling leaves the dispute with Judge David Carter of the Central District of California, who has set a hearing for Oct. 27, a week before the Nov. 3 election. The panel also declined to extend A.A.R.P. v. Trump, a 2025 Supreme Court decision that treated a district court's 14-hour, 28-minute silence on an emergency motion as an appealable refusal. A.A.R.P. "does not stand for the proposition that litigants may appeal a request for an injunction whenever the district court fails to rule within fifteen hours of filing," the panel wrote.

The United States sued California, Secretary of State Shirley Weber and Los Angeles County Registrar-Recorder Dean Logan on Oct. 15. It argued, in the panel's words, that the defendants violated the Supremacy Clause by "knowingly facilitating the votes of noncitizens." That conduct, the government said, frustrated 18 U.S.C. § 611(a), the statute that makes it a crime for noncitizens to vote in federal elections.

Two federal agencies compiled the list by checking California's voter roll against internal and third-party data. Weber questioned their methodology after a July inquiry, and the order says the government did not follow up before California mailed ballots to all registered voters on Oct. 1, as state law requires. Los Angeles County began processing returned ballots on Oct. 5. On Oct. 13, the government sent a list of more than 20,000 names and gave officials 48 hours to act on it.

In filings on Oct. 19 and Oct. 21, the government twice asked the district court for relief by Nov. 3, and Judge Carter set the Oct. 27 hearing on the day the case was reassigned to him. At 8:57 p.m. on Oct. 21, citing the county's disclosure that it had processed more than 331,000 mail ballots, the government asked for a ruling by noon the next day. It appealed when the deadline passed, calling the silence a "constructive denial."

The panel held that the case lacked the urgency of A.A.R.P., in which detainees facing removal under the Alien Enemies Act had "already been loaded on to buses, presumably headed to the airport." "The United States's claimed emergency, at least in part, is a self-constructed one," the panel wrote. It noted that the government had raised concerns about California's rolls since July, that its complaint "said nothing about irreparable harm," and that, as Logan reported, it declined to support his request for expedited briefing, which California backed, because it did not believe there was sufficient exigency.

The panel also found that the government would not lose its chance at appellate review, a factor drawn from the Supreme Court's 1981 decision in Carson v. American Brands. The government conceded at oral argument that district court proceedings will continue and that any dissatisfied party may seek appellate review. "There is here no loss of jurisdiction," the panel held.

Judge Bennett wrote that even with jurisdiction the request would fail because it sought a mandatory injunction, an order compelling affirmative action that courts grant only when the law and facts clearly favor the movant. "Nothing in § 611—a statute that criminalizes voting by a noncitizen—preempts California's comprehensive statutory scheme that has been duly enacted under the Elections Clause," Judge Bennett wrote. If the government believes mail ballots need added citizenship confirmation, the concurrence said, "the appropriate audience for that suggestion, in full accord with the plain language of the Elections Clause, is Congress, not the courts."

The concurrence also cited a county technology official's "grave concerns about the potential catastrophic impact" of segregating the ballots, and the defendants' sample of 200 records from the list, in which 38.9% of the records with meaningful birthplace information indicated birth in the United States.

Judge Sanchez wrote that the Purcell principle, under which federal courts generally should not change election rules on the eve of an election, would independently bar relief. "That these proceedings encroach on the cusp of an election is a delay entirely of the United States' own making," Judge Sanchez wrote. The government, the concurrence said, "seeks to shift the burdens of its priorities onto California and co-opt the State into carrying out the Executive Branch's policies on a massive scale."

Judge Bumatay would have found jurisdiction. Once the ballots in question are processed, "it would be impossible to identify them, and they must be counted in the election," Judge Bumatay wrote. The dissent accepted the government's account that it learned the scale of the counting only from the state's Oct. 20 opposition brief. "We shouldn't presume gamesmanship that would preclude our jurisdiction on these facts," Judge Bumatay wrote.

On the merits, the dissent concluded that § 611(a) likely preempts Weber's refusal of the government's requests. Judge Bumatay would have ordered a limited injunction barring officials from mixing the ballots of voters on the federal list with other ballots. Rejecting the Purcell objection, Judge Bumatay wrote, "Citizens can vote. Non-citizens can't. That's always been true. An injunction here isn't changing the rules but applying them."

The panel denied as moot several motions to intervene in the appeal. The case now returns to Judge Carter, who has reiterated his plan to hold the Oct. 27 hearing and has committed to "rul[ing] promptly after hearing from the Parties."