The Trump administration has lost its fight to pull more than 20,000 California mail ballots out of the midterm count at every level of the federal judiciary it has tried so far — and now it is asking the nation’s highest court.
The administration asked the U.S. Supreme Court on Monday, Nov. 2, 2026, to order California to temporarily set aside ballots cast by more than 20,000 people the Justice Department claims may be noncitizens who illegally cast votes, a last stop after U.S. District Judge David Carter refused the request and the department pressed an emergency appeal at the 9th Circuit.
Carter denied the department’s bid for a temporary restraining order in a 26-page order issued Wednesday evening, Oct. 28, a day after a hearing in Los Angeles federal court on Tuesday, Oct. 27. The department filed a notice of appeal immediately, and the 9th Circuit refused to block the count on Friday, Oct. 30.
The department had asked Carter to bar California and Los Angeles County from counting the mail ballots of more than 20,000 registered voters it says are “likely” noncitizens. Carter, an appointee of Democratic President Bill Clinton, ruled that a last-minute demand of that kind runs against constitutional principles leaving elections to the states, and he warned that a ruling for the Trump administration would “wreak havoc.”
“Precisely Zero” Out of 26
Carter found that the government likely lacks standing and that its request would likely violate the National Voter Registration Act’s ban on systematic voter purges within 90 days of an election. He wrote that the department bought California’s voter rolls in May and then waited until mid-October to sue.
The judge also faulted the government for not disclosing until the night before the hearing that it built its list using the LexisNexis analytics platform, and for never disclosing its matching rules, confidence thresholds or error rates. “The Court cannot conclude that Plaintiff’s process is credible,” he wrote.
On the timing, Carter wrote: “Plaintiff’s theoretical risk of imminent harm is solely due to its own neglect.” He noted the department’s wider record, writing that it “has filed at least thirty-one lawsuits in federal district courts across the country seeking complete voter rolls from the States. Out of the twenty-six decided cases, the DOJ has prevailed in precisely zero.”
Carter had earlier told the court he was inclined to appoint a special master to vet the government’s data processes. On Oct. 29 he appointed Daniel B. Garrie to the role and set a hearing for Nov. 13.
Ballots Already Out of Their Envelopes
More than 3.7 million people had already voted in California when Carter ruled, and court filings showed more than 500,000 ballots had already been processed — envelopes verified and ballots removed — as of the week of Oct. 28.
That processing sits at the heart of the department’s urgency argument. Election workers verify the signatures on returned mail ballot envelopes, then separate the ballots from the envelopes to protect voter confidentiality, and after that step an ineligible ballot can no longer be retrieved.
Bill Essayli, the top federal prosecutor in Los Angeles, said in a statement, “Every day, more ballots are processed by election officials,” calling the situation an ongoing emergency that dilutes the votes of American citizens.
Carter wrote at the conclusion of his order: “Once a vote is segregated, lasting harm has occurred.”
U.S.-Born Voters on the List
State and local officials told the court the department’s list is unreliable. A preliminary analysis by Los Angeles County found many people on the list without active voter registrations, and some of those flagged appear to be U.S.-born.
California said its safeguards against noncitizen voting are robust and that the department’s assertions rested on “suspect data.” The department never said how many of the more than 20,000 flagged voters had actually returned a mail ballot.
Officials also argued that setting ballots aside days before Election Day, with voting and mail ballot processing already under way, would be unlawful, infeasible and disenfranchising to eligible voters. California Attorney General Rob Bonta, a Democrat, asked the judge in a court filing to weigh the circumstances behind the demand, writing that more federal interference in the state would follow and that the court should not be pulled into it.
Bonta called the ruling an important victory in a statement. “But this fight is not over. We will keep fighting to protect California’s elections from unlawful federal interference and get this baseless lawsuit dismissed,” he said.
Jonathan Miller, chief program officer at Public Rights Project and counsel for Los Angeles County, said the ruling showed the federal government was interfering in the election.
Washington State and an Alaska Senate Race
Carter pointed to a remedy the government already has: indicting people for the crime of voting illegally as noncitizens. Department officials say dozens of people have been charged in the past two months with registering or voting without being U.S. citizens, including 28 in California. The judge wrote that the department never explained why counting the ballots would impair any prosecution, and that states are not required to help federal officials investigate and prosecute crimes.
The 9th U.S. Circuit Court of Appeals had already turned the department away once. A divided panel threw out its bid to halt the count on Monday, Oct. 26, before Carter had ruled. The department filed the California suit Oct. 15.
The California case is one of a string of unprecedented moves by the department in states close to Election Day. Federal prosecutors asked Washington state election officials on Monday, Oct. 26, to review a list of 400 registered voters they believe are likely noncitizens. In Alaska, the department sued to stop the state from certifying Senate race results if the Republican incumbent loses because of ballots cast for a similarly named longshot, whom the department accuses of being a spoiler.
California is a Democratic stronghold with 52 House seats, more than any other state. Trump’s Republican Party faces a tight battle to keep control of both chambers of Congress on Nov. 3.
Audits and investigations have shown voting by noncitizens to be extremely rare. President Donald Trump calls it widespread and has repeatedly accused states of failing to prevent it. California has been a focal point of his immigration crackdown since he returned to the White House, and he has accused the state of undermining public safety through its sanctuary policies.
Carter put the stakes of the request this way in his order: “Never before in American history has the federal government, on the eve of an election, sought to coerce a state and local government to abandon their own Constitutional elections procedures and bend to the will of the Executive Branch.”
