U.S. District Judge David O. Carter on Wednesday, October 28, denied the Justice Department's emergency request to make California and Los Angeles County set aside mail ballots from about 20,000 registered voters the federal government says are likely noncitizens, finding that the department is unlikely to win its case and that it had not shown its list to be credible. The department says the names were checked against immigration, Social Security and passport records and reviewed by hand, and that U.S. Citizenship and Immigration Services, checking a 200-name sample drawn by the county, found none of the people it matched to be U.S.-born by its records and, on a second review, judged all but four of them likely noncitizens; it found that those four might have a claim to citizenship and that one person had died, and did not say how many of the 200 it matched. It appealed to the U.S. Court of Appeals for the Ninth Circuit that night. California and the county say the list is unreliable and that pulling ballots aside days before Election Day would disenfranchise eligible voters.
Carter wrote that the request "would wreak havoc and disrupt the election that is already underway, create a chilling effect on election workers and voters alike, and discount the votes of United States citizens." Bill Essayli, the first assistant U.S. attorney in Los Angeles, answered on X: "Every day, more ballots are processed by election officials. This ongoing emergency disenfranchises American citizens through dilution."
The government's case
The suit, filed October 15, argues that California's handling of these ballots is preempted by 18 U.S.C. § 611, the federal law that makes it a crime for a noncitizen to vote in a federal election, and that mixing likely ineligible ballots with lawful ones dilutes citizens' votes; once a ballot is separated from its signed envelope, it cannot be traced back. Sworn declarations from federal officials describe how the list of about 20,930 names was built: a California voter file was matched against USCIS immigration records with help from LexisNexis data, screened against State Department and Social Security records, and checked by USCIS staff with a second-level review. Essayli told the court that roughly 800 to 900 people worked on the review and that, judging by the county's sample, "98 percent of the people on there was correct." The department has also charged 28 people in California with election-related crimes this month. "We did the work for them," Essayli wrote after the department sent letters to all 58 California counties on October 23. He told Carter that California, which already runs Medi-Cal applicants through SAVE, a federal citizenship-check system, could check the list itself "in, we think, hours or days"; the government did not use SAVE to build the list. California's lawyer replied that the state "has concerns about the SAVE database's reliability." In an earlier appeal, Ninth Circuit Judge Patrick Bumatay wrote in dissent that "federal law precludes California from commingling ballots likely cast by aliens with legitimate ballots."
The county's figures and the judge's findings
Los Angeles County says 7,035 of the names have county addresses, and that in a 200-name sample, 42.9 percent were canceled registrations, 4.6 percent were inactive and 71.2 percent had never voted; just over 38 percent of those in the sample who listed a birthplace said they were born in the United States, the county said. USCIS disputed the birthplace figure using its own records, and in a footnote acknowledged that about 189 records on the list had "minor data discrepancies."
Carter found that the United States likely lacks standing and a cause of action to sue; that California's own laws, which also limit voting to citizens, "reinforce, rather than conflict with" the federal statute; and that the remedy would likely violate federal voting-rights laws. He wrote that any risk of harm was "solely due to its own neglect," because the government told California in July that as many as 190,832 noncitizens might be registered but did not sue until October. He noted that the department disclosed only the night before the hearing that its data vendor was LexisNexis, and pointed to Nevada, where the Department of Homeland Security first said as many as 15,903 noncitizens might be registered and later named 185 it said it had confirmed. Nevada's deputy attorney general wrote that "our records indicate that they were citizens," and the department called Nevada's characterization "false," The New York Times reported in September. Essayli told Carter that Nevada's answer rested on voters' own attestations: "The State came back and said, we have an attestation for each of the 185," adding, "it's never been adjudicated." Carter wrote that "the Court cannot conclude that Plaintiff's process is credible," and that the department's remedy is prosecution: "The United States can prosecute individuals according to Section 611."
The order also addressed the department's October 23 letters telling county officials they "risk significant federal scrutiny," and Essayli's statement in court that officials would be "criminally liable if they knowingly process a ballot of a non-citizen." The judge wrote that "these threats must stop," repeating his remark from the bench that it "would be wise that any threats to State and County-elected employees cease immediately." The order's only ruling is the denial of the government's request; it does not separately bar the department from anything.
The appeal, and other states
On October 26, a Ninth Circuit panel dismissed the department's earlier appeal, 2-1, holding that it lacked jurisdiction because the government "failed to allow the district court adequate opportunity to consider its application," and calling the claimed emergency at least in part "a self-constructed one." On Wednesday night the department filed a new notice of appeal and asked Carter for an injunction while it proceeds, arguing that by the county's own account a processed ballot "cannot be undone." Essayli has said he expects the case to reach the Supreme Court, MS NOW reported. On Thursday, Carter set the rest of the case on an expedited track: he will hear the motions to dismiss and the department's motion for a preliminary injunction on November 13, ordered all parties to file witness lists by November 6 "regarding the reliability of the October List and the methodology Plaintiff used to produce it," and appointed Daniel B. Garrie as a technical special master "to assist the Court in developing the factual record."
California is not the only state where the department has made such a demand. On October 26, Charles Neil Floyd, the acting U.S. attorney for western Washington, asked that state to set aside ballots from more than 400 people the department says are noncitizens. Floyd said federal agents had spoken directly with some of the flagged voters and that some said they had received ballots in the mail and thought they were eligible to vote, the Associated Press reported; the department also acknowledged that some on its list may since have become citizens. Washington Secretary of State Steve Hobbs said some people federal subpoenas had asked about were citizens and that "they're harassing actual citizens." Attorney General Todd Blanche has said "a number of states" are under review for California-style suits. In Los Angeles County alone, more than 550,000 ballots had already been processed, the county's lawyers said this week. Election Day is November 3.
This article reflects reporting through the afternoon of Thursday, October 29, 2026. Sources: Judge Carter's order and the court docket, including the October 27 hearing transcript, Carter's October 29 scheduling order, the USCIS declarations of Nicolas Bartell, the Justice Department's October 28 filings and the Ninth Circuit's October 26 order; NBC News; CBS News; NPR; MS NOW; Fox News; Democracy Docket on the ruling and the county letters; the Associated Press via the Anchorage Daily News on Washington; The New York Times, September 24, on Nevada.
