Noncitizens cannot legally vote in American elections. Nobody in this case disputes that. Yet on Monday, the Trump administration lost a key round in its fight over California noncitizen ballots. A big part of the reason was its own clock.
A 2-1 panel of the Ninth Circuit dismissed the Justice Department’s emergency appeal for lack of jurisdiction, according to the court’s order. The DOJ wanted California and Los Angeles County to set aside mail ballots from more than 20,000 people it calls “likely” noncitizens. It also wanted their citizenship checked before those ballots were counted.
Key Takeaways
- The Ninth Circuit tossed the DOJ’s emergency appeal 2-1 for lack of jurisdiction.
- The panel said the government’s emergency was, at least in part, self-constructed.
- Judge Mark Bennett, a Trump appointee, joined the majority. Judge Patrick Bumatay, also a Trump appointee, dissented.
- U.S. District Judge David Carter holds a hearing Tuesday, Oct. 27, in Los Angeles. Election Day is Nov. 3.
How the California Noncitizen Ballots Case Got Here
The timeline matters. In July, the Department of Homeland Security told California that as many as 190,000 noncitizens might be on its rolls, Courthouse News reports. State officials responded with skepticism and asked how the list was built. Then, on Oct. 1, California mailed ballots to every registered voter, as state law requires.
Los Angeles County began counting on Oct. 5. However, the DOJ did not send its list of more than 20,000 names until Oct. 13. It sued two days later. After that, it twice asked the trial court for a ruling by Nov. 3. So Judge Carter set a hearing for Oct. 27.
Then the DOJ changed course. At 8:57 p.m. on Oct. 21, it asked for a ruling by noon the next day. It said it had just learned the county had processed more than 331,000 ballots. About 15 hours later, with no ruling, it appealed.
What the Judges Said
The panel was blunt. “The United States’s claimed emergency, at least in part, is a self-constructed one,” the order says. It added that the DOJ “had the information it needed to seek relief with exigency well before October 21, 2026.”
Notably, this was not a ruling from the left alone. Bennett, a Trump appointee, fully joined the order. He also wrote that he would deny the request even if the court had jurisdiction. “There is no dispute that it is unlawful under both federal and California law for noncitizens to vote,” he wrote. In his view, the fight is about procedure, and the federal law the DOJ cited does not override California’s election rules.
Judge Gabriel Sanchez, a Biden appointee, went further. He said the government asked a federal court “to dictate to a state legislature a matter squarely within the state’s traditional domain.”
The Dissent Makes a Fair Point
Bumatay saw it differently, and conservatives should hear him out. “Citizens can vote. Noncitizens can’t. That’s always been true,” he wrote. “An injunction here isn’t changing the rules but applying them.”
His core worry about California noncitizen ballots is practical. Once a mail ballot leaves its envelope, he noted, no one can tell who cast it. As a result, an illegal vote, once counted, stays counted. For that reason, he called setting those ballots aside “the bare minimum.”
What California Noncitizen Ballots Teach Us
Bumatay is right that the stakes are real. After all, every illegal ballot cancels out a legal one. Still, the list has problems too. In a sample of 200 records cited by Bennett, 38.9% of those with clear birthplace data showed a U.S. birth. Meanwhile, the DOJ said 28 people on the list faced criminal charges, NBC News reports. Yet it did not say how many people on the list had actually returned a ballot.
That is the lesson. Election integrity works best when officials do it early and by the book. First, clean the rolls before ballots go out. Next, share the data in July, not in October. Finally, file in court with time to spare. As we noted in our post on the DOJ flagging about 400 noncitizen voters in Washington, rushed or sloppy lists hand critics an easy win.
Fiscal conservatives know this from audits. You don’t start the audit after the books close.
What Comes Next
Now the case returns to Judge Carter for Tuesday’s hearing in Los Angeles. He has said he will rule promptly after hearing from both sides. Meanwhile, the clock on California noncitizen ballots keeps ticking toward Nov. 3. The AP reports that the ruling sets up another legal showdown on Tuesday.
So here is our question for you: should states be required to verify citizenship before mail ballots go out?
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