The Ninth Circuit rebuffs the DOJ's manufactured ballot crisis

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

A self-constructed emergency

The United States Department of Justice is attempting to manufacture a crisis to justify a federal takeover of state election administration. The Trump administration filed an emergency appeal to the Ninth Circuit Court of Appeals to sequester 20,000 mail-in ballots in California. It is not seeking to protect the integrity of the vote, but to disrupt the statutory processes of a sovereign state. On Monday, October 26, a panel of the Ninth Circuit rejected this demand. The court correctly identified that the federal government’s purported urgency was a product of its own procedural choices, as reported by CNN and The Guardian.

The Justice Department alleges these ballots belong to noncitizen voters. To support this, the administration sent letters to at least 18 California counties demanding sensitive information, including Social Security numbers. These letters targeted voters suspected of being noncitizens, according to reporting by KCRA. This is not a sudden discovery of fraud; it is a sudden deployment of federal pressure. As the majority opinion in the Ninth Circuit noted, "The United States’s claimed emergency, at least in part, is a self-constructed one."

The court pointed to the administration's own timeline as the source of the friction. The majority stated that part of the delay stems from the United States’s own delay in filing suit. The government was slow in realizing that existing California state law governs the issuance and processing of ballots, and in communicating its desired relief. This is a classic attempt to use the judiciary to bypass the slow, deliberate machinery of state-run elections. When the administration fails to respect the pace of local administration, it cannot then claim a constitutional crisis because the state refuses to sprint to its command.

The mechanism of interference

This intervention follows a pattern of using administrative tools to create legal friction. We saw the groundwork laid in August when the Postal Service implemented a final rule creating the Federal Ballot Mail Portal. This rule requires state election officials to upload voter data to a federal portal, creating state-specific participation lists for law enforcement use. The DOJ’s current litigation is the logical extension of this architecture. First, build the data-gathering infrastructure; then use that data to launch emergency litigation that threatens to halt the counting of votes.

This tactic shares a mechanism with Bush v. Gore. In that 2000 case, a federal court intervened in a state's ballot-counting process during a high-stakes election window to resolve a dispute over the validity of specific votes. Bush v. Gore involved a dispute over recount procedures. In contrast, the current DOJ action seeks to preemptively sequester ballots based on unproven allegations of noncitizen status before a district court has even held a hearing.

The administration’s strategy is not limited to the ballot box. We see the same executive impulse in the establishment of a committee of inquiry to investigate Federal Reserve Governor Lisa D. Cook. In both instances, the executive branch uses the machinery of the state to target specific individuals or processes under the guise of "faithful execution" of the law. This is not the behavior of a department seeking to uphold rules; it is the behavior of an administration testing the limits of its reach.

The cost of procedural shortcuts

The Justice Department’s argument rests on the idea that the federal government must intervene immediately to prevent the counting of allegedly ineligible votes. California Deputy Solicitor General Samuel P. Siegel argued that the situation seemed “absurd on its face.” The core of the issue is not whether noncitizens can vote. California law already requires an attestation under penalty of perjury that a registrant is a United States citizen. The question is whether the federal government can unilaterally override state processes mid-stream.

The administration argues that California failed to meet a 48-hour deadline to review a list of 20,000 people alleged to be noncitizens. This is a demand for a speed that ignores the reality of election administration. As Ken Casparis, a Sacramento County elections spokesman, noted to KCRA, county staff must work with the Secretary of State’s Office to remove ineligible voters. That process requires coordination and verification. To demand that this happen in a vacuum, under federal threat, is to demand the abandonment of due process.

The Ninth Circuit’s decision to remand the case to the U.S. District Court for a hearing on Tuesday, October 27, is the correct procedural holding. The court rightly held that it lacked the authority to rule on the lawsuit before the district court addressed the matter. It noted that the federal government "failed to allow the district court adequate opportunity to consider" the request to sequester the ballots.

The legitimacy of our election system relies on the predictability of the process. When the federal government uses the Department of Justice to launch last-minute, high-stakes litigation designed to create chaos, it treats the law as a weapon rather than a shield. A rule that only works while your party holds power is not a rule; it is a tactic. The courts must continue to demand that the government respect the jurisdictional boundaries and the temporal realities of state election administration, or the very concept of a predictable election will vanish.

The Ninth Circuit rebuffs the DOJ's manufactured ballot crisis

A self-constructed emergency

The mechanism of interference

The cost of procedural shortcuts

Sources