Ninth Circuit properly rejects Justice Department ballot stunt

By Adele Rutherford · Reporting from Atlanta · October 27, 2026

The federal government manufactured an eleventh-hour crisis to upend California's election, but an appellate panel properly insisted that procedural rules still apply.

Procedure is the shield of democracy when power changes hands

There is a particular sort of hubris that takes hold in Washington when a department of state forgets that rules were built to outlive the people who write them. On Monday, a panel of the 9th Circuit Court of Appeals issued a 2-1 ruling declining to intervene in an emergency appeal by the Justice Department. The ruling was reported by Politico, Newsday, CNN, NBC News, ABC News, and The Guardian. The department sought to force California to separate mail-in ballots from 20,000 people the federal government claims are likely noncitizens. It demanded an immediate order before the midterm elections. The majority concluded that the Justice Department improperly circumvented a lower-court judge. The emergency was, in large part, self-constructed.

Judge Gabriel Sanchez, a Biden appointee, wrote that the federal government was delayed in recognizing California's scale. The state has millions of registered voters and processes ballots on a schedule aligned with that scale. He noted that the proposed injunction would transform California’s election rules for an election already underway. That would usher in electoral chaos. Judge Mark Bennett, a Trump appointee who joined the majority, wrote separately. Had the court authority to resolve the lawsuit, he would have ruled against the Justice Department on the merits. He found nothing in federal law that preempts state authority in election administration. Judge Patrick Bumatay, also a Trump appointee, dissented. He argued that federal law precludes California from commingling ballots likely cast by aliens.

The mechanism here is the same one the Supreme Court confronted in United States v. Arizona, 567 U.S. 387 (2012). In that case, federal authority and state administration clashed over immigration enforcement. The high court held that states cannot simply craft parallel immigration schemes that bypass federal statutory designs. Likewise, the Executive Branch cannot treat state election machinery as an administrative convenience. It may not rearrange rules by telephone on the eve of an election. The Department of Justice filed its lawsuit in federal court in Los Angeles and gave the state a 48-hour deadline to comply. It then rushed to the appellate court rather than wait for the scheduled Tuesday district court hearing. That is not litigation. That is an attempt to use the federal bench as a battering ram against a co-equal state apparatus.

The self-constructed emergency cannot displace the district court

The strongest opposing case for the Department of Justice rests on the proposition that the franchise is sacred. Any dilution of a legal vote by an illegal one inflicts an unrecoverable injury. Judge Bumatay put it plainly in his dissent. He argued that stopping the count for those identified as likely noncitizens is the bare minimum. The federal government has a profound interest in stopping illegal voting in the first place. Lawyers for the administration pointed to twenty-eight individuals criminally charged with illegal voting in California. They suggested an imminent threat to the integrity of House elections, where California holds 52 seats.

The argument has surface appeal, but it collapses upon inspecting the record and the timeline. As Judge Sanchez observed, the federal government’s claims depended entirely on a list of 20,000 voters. Its reliability could not be established when questioned. During the hearing, DOJ attorney Matthew Donnelly could not explain which third parties supplied data or how analytics were conducted. Meanwhile, Los Angeles election officials analyzed a sample of 200 people from the list. They found a high percentage were born in the United States. A government that cannot verify the provenance of its own list cannot demand that a court upend an ongoing election. Three weeks of voting are already behind it.

The Ninth Circuit's refusal to bite on this manufactured crisis recalls the wisdom of older commercial precedents like Oki America, Inc. v. Microtech International, Inc. There, the court warned against the intrusion of unwarranted litigation into established operational frameworks. Procedure is where power actually lives. I learned that watching government machinery in Georgia courts long before today's partisans discovered the emergency docket. The executive cannot manufacture an emergency by sitting on data for weeks and demanding an injunction in forty-eight hours. If it can, no state election law is safe from arbitrary federal override.

A rule that only works for your side is no rule at all

To cheer or jeer this ruling based on political valence misses the point of judicial architecture. California Attorney General Rob Bonta described the ruling as a welcome speed bump to attacks on democracy. Governor Gavin Newsom characterized the actions as an assault on democracy. But the applause from state officials should be tempered by the realization that today's shield is tomorrow's sword. The test of any procedural rule is simple. You must be able to stomach your bitterest ideological opponents holding the exact same tool under the exact same deadline.

The Trump administration has filed lawsuits against 30 states and Washington, D.C., regarding voter rolls. It has lost 26 of those cases, according to NBC News reporting. When the shoe was on the other foot, principles of federalism and judicial restraint were invoked selectively. Whichever faction felt aggrieved by the calendar changed its tune. We have seen this movie before. We know how it ends if courts abandon their gatekeeping role in favor of snap injunctions.

A judiciary that dispenses with the district court stage to accommodate executive impatience has ceased to be a court of law. It becomes an adjunct of the campaign trail. Judge Bennett was entirely correct in noting that California must craft its own procedures under the Elections Clause. The Justice Department's demands risked the disenfranchisement of eligible voters. The panel got this right. It refused to let a rushed complaint substitute for deliberate fact development in the court below. Legitimacy is a capital stock that spends fast and refills slowly. The Ninth Circuit preserved a little bit of that capital on Monday.

The 9th Circuit Court of Appeals panel correctly denied the emergency appeal because the Department of Justice manufactured its own deadline. The lower court must now hold its scheduled hearing without federal interference.

Ninth Circuit properly rejects Justice Department ballot stunt

Procedure is the shield of democracy when power changes hands

The self-constructed emergency cannot displace the district court

A rule that only works for your side is no rule at all

Sources