Judges raise legal questions over Trump DOJ's push to set aside California mail ballots
WASHINGTON, DC: Days after the Department of Justice (DOJ) asked California election officials to set aside mail-in ballots linked to people suspected of being noncitizens, judges questioned the federal government's authority to intervene in the state's vote-counting process.
The DOJ sent a letter to California election officials on October 13, 2026, asking them to set aside specific mail-in ballots. Acting Deputy Attorney General Trent McCotter sent the formal letter to California Secretary of State Shirley Weber and the Los Angeles County Registrar of Voters.
Judges question DOJ's argument and authority
During a highly unusual emergency hearing on Sunday, October 25, a three-judge panel of the US Court of Appeals for the Ninth Circuit expressed skepticism about the DOJ's attempt to stop California from counting mail-in ballots linked to suspected noncitizens.
Judge Mark Bennett questioned the Justice Department's attorney, observing that California appeared to have legal authority to administer its own elections. Bennett also questioned whether a federal law prohibiting noncitizens from voting in federal elections gave the DOJ the authority to regulate California's election procedures.
Bennett, a Trump appointee, and Judge Gabriel Sanchez, a Biden appointee, both questioned DOJ’s decision to appeal in the ninth Circuit before the US District Court in California, where the case was originally filed, had held a hearing.
They also pressed the DOJ attorney over the credibility of the department’s claim that there are 20,000 noncitizens on California’s voter roll. The government has said federal agencies analyzed voter-registration records alongside immigration data to identify people it believes may be noncitizens. California officials have challenged the reliability of the list.
The Appeals court panel was disputed by 2-1
At least two of the three judges on the panel disputed the argument that federal law trumps the Constitution giving the power of running elections primarily to the states.
“It seems to me that under the Elections Clause, they have the right to determine the manner of the elections, including sorting out noncitizens,” Bennett said during the hearing, which was held over videoconference and broadcast on YouTube.
Judge Patrick Bumatay, a Trump appointee, questioned attorneys for California and Los Angeles County about how noncitizens are investigated on the voter rolls.
He also highlighted what DOJ had suggested in court filings, that not setting aside mail-in ballots would keep California from ever learning whether noncitizens illegally voted in the midterms.
DOJ also files Alaska Lawsuit amid Trump's voter fraud claims
The Ninth Circuit hearing comes amid the Trump administration's broader efforts to address what President Donald Trump has repeatedly claimed is widespread voter fraud in US elections.
Last week, the Justice Department filed a lawsuit in Alaska seeking to prevent the state from certifying the US Senate election result under certain circumstances if incumbent Republican Sen. Dan Sullivan loses. The case involves another candidate, Daniel J. Sullivan, who is also on the ballot.
The DOJ argues that voter confusion involving the similarly named candidates could affect the result and has asked the court to block certification if the circumstances outlined in its complaint arise.
The DOJ filed its lawsuit against California and Los Angeles County on October 15, seeking to have officials set aside mail-in ballots linked to approximately 20,000 people the government believes may be noncitizens. The administration has asked the court to prevent those ballots from being counted until the voters' citizenship status can be verified.
