Ninth Circuit restores Justice Department's power to seek removal of suspected noncitizen ballots

Overview

Updated 1 hour ago

On October 13, the Justice Department sent California and Los Angeles County a list of about 20,000 registered voters it called likely noncitizens and asked officials to review it within 48 hours. Both refused. On Tuesday, an 11-judge panel of the Ninth Circuit ruled 6-5 that the department can keep making those requests, and can keep telling election officials that counting a challenged ballot is a federal crime.

The ruling reinstates a stay that had been granted, vacated and granted again within roughly 12 hours. It also suspends a district judge's requirement that the department disclose pending warrants and grand jury subpoenas, and that it notify officials of the judge's restrictions. The underlying restraining order expires November 16, which leaves two weeks in which federal prosecutors can press state officials with no court order in their way.

Why it matters

Federal prosecutors can now warn local election officials that counting a challenged ballot is a crime, with no court order saying otherwise.

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Key Indicators

6–5

Vote on the en banc panel

Eleven judges heard the stay request; five dissented, led by Chief Judge Mary Murguia.

~21,000

Voters flagged in the disputed lists

The department's figure for registered voters it alleges are noncitizens, across California and Washington.

17 days

Length of the district court's restraining order

Entered October 30, it expires November 16, 2026.

States that received the letters

California and Washington; Los Angeles County was named separately in the California letter.

Voices

Curated perspectives — historical figures and your fellow readers.

People Involved

Mary Murguia

Chief Judge, U.S. Court of Appeals for the Ninth Circuit

Wrote the principal dissent in the 6-5 stay order

Eric D. Miller

Circuit Judge, U.S. Court of Appeals for the Ninth Circuit

Filed a separate opinion concurring in the stay

Mark J. Bennett

Circuit Judge, U.S. Court of Appeals for the Ninth Circuit

Filed a separate opinion concurring in the stay

Organizations Involved

U.S. Court of Appeals for the Ninth Circuit

Federal appellate court

Issued three orders on the stay within about 12 hours, ending with the 6-5 en banc ruling

The largest federal appeals court, hearing appeals from nine western states including California and Washington.

U.S. Department of Justice

Federal agency

Sending ballot-sequestration requests and warning of prosecution

The federal agency whose letters to California and Washington set off the litigation.

U.S. Department of Homeland Security (DHS)

Federal agency

Named defendant alongside DOJ in the underlying suit

The agency whose data underpinned the list of voters the government says may not be citizens.

Timeline

October 2026 November 2026

6 events Latest: Today

Tap a bar to jump to that date

November 2026
En banc panel reinstates the stay, 6-5
Today Legal

An 11-judge panel restores the stay after a day of reversals, letting the department resume requests, warnings and suspended disclosure requirements.
Today
Supreme Court declines emergency relief
Legal

The justices turn down the government's request for emergency relief in the California case, leaving the panel ruling in place.
2 days ago
October 2026
District court blocks the requests and threats
Legal

A Los Angeles federal judge grants a temporary restraining order barring further sequestration requests and prosecution threats. It expires November 16, 2026.
5 days ago
Separate Ninth Circuit panel backs the states
Legal

In United States v. California, a panel holds the federal government has no authority to compel state officials to disregard their own election procedures.
5 days ago
Unions and advocacy groups sue
Legal

Two labor unions and two political-interest groups sue the Justice and Homeland Security departments, alleging violations of the Voting Rights Act and the Elections Clause.
6 days ago
Justice Department demands California review voter list
Executive action

Letters to California and Los Angeles County ask officials to review about 20,000 voters identified as likely noncitizens within 48 hours and to set aside their ballots.
October 13th, 2026

Scenarios

Stay Holds Through November 16 and the Requests Stand

Likely Resolves by Nov 16, 2026

Discussed by: The Ninth Circuit majority and the concurring opinions of Judges Miller and Bennett, which treat the dispute as a short-window stay rather than a merits ruling

The en banc court leaves its own 6-5 order undisturbed and the district court's restraining order lapses on schedule. Federal officials keep asking states to segregate challenged ballots and keep warning of prosecution through the post-election counting period. Nothing in the order decides whether the underlying voter lists are accurate.

District Court Converts the Restraining Order Into a Longer Injunction

Possible Resolves by End of 2026

Discussed by: The plaintiffs, who sought the original order, and the dissent, which argued the district court properly tried to stop what it called spurious threats

With the temporary order running out, the plaintiffs ask the Los Angeles district court for a preliminary injunction that lasts through the case. That would put the two Ninth Circuit holdings back in tension and likely send the government back to the appeals court or to the Supreme Court for emergency relief.

Supreme Court Takes the Dispute

Possible Resolves by Q2 2027

Discussed by: Both sides, after the justices declined emergency relief in the related California case on November 2

A second emergency application, this time aimed at the en banc order, or a petition for review of the underlying legal question. The Court's earlier refusal in United States v. California turned on a different question: whether a state must adopt a federal ballot process, not whether the department may ask for one.

Historical Context

3 moments from history that rhyme with this story — and how they unfolded.

1997

Printz v. United States (1997)

The Supreme Court struck down provisions of the Brady Act that required local sheriffs to run background checks on handgun buyers. The Court held that Congress cannot commandeer state executive officials to administer a federal program.

Then

Local law enforcement was no longer obligated to conduct the federal checks.

Now

The anti-commandeering principle became a standard limit on federal power over states, cited across policy areas including elections.

Why this matters now

The Ninth Circuit's earlier ruling in United States v. California rests on this line: Washington may ask states to do something, but cannot compel them. The current fight is over whether threats of prosecution count as asking.

November-December 2000

Bush v. Gore (2000)

The Supreme Court halted the Florida recount five weeks after Election Day, ending the dispute by a 5-4 vote. The recount had been ordered by the state's highest court.

Then

George W. Bush won Florida's electoral votes and the presidency.

Now

The decision set a precedent for federal courts intervening in state election administration under tight deadlines, and it shaped how both parties litigate close elections.

Why this matters now

This dispute follows the same pattern: state procedures, federal court intervention, and a calendar that does not wait for the appeal to be fully briefed.

June 2013

Shelby County v. Holder (2013)

The Supreme Court struck down the coverage formula in the Voting Rights Act that required certain states and counties to get federal approval before changing election rules.

Then

Several states immediately changed voting procedures that had previously required preclearance.

Now

Federal oversight of state election administration shifted from routine review to case-by-case litigation, usually after a change has already taken effect.

Why this matters now

The current lawsuit alleges Voting Rights Act violations over the department's letters. With preclearance gone, disputes like this one are resolved in court, often mid-election.