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US Midterms 2026
11NOV

9th Circuit sends DOJ ballot case back

2 min read
18:10UTC

A 9th Circuit panel ruled 2-1 on Monday 26 October that it lacked jurisdiction over DOJ's bid to make California set aside mail ballots from more than 20,000 listed voters, and returned the case to Judge David O. Carter.

PoliticsAssessed
Key takeaway

The 9th Circuit would not rule on DOJ's California ballots appeal before the district judge does.

A 9th Circuit panel, the federal appeals court for California and eight other western states, ruled 2-1 on Monday 26 October that it lacked jurisdiction over the Department of Justice (DOJ) appeal in its California ballots case⁠1⁠2. DOJ wants California to set aside mail ballots from more than 20,000 listed voters, a demand it renewed last week. The panel sent the case back to district judge David O. Carter, who had not yet ruled.

DOJ appealed because Carter did not rule by a noon deadline on 22 October that DOJ itself had set⁠3. Judge Mark Bennett wrote that he would also have refused on the merits: federal law on voting by non-citizens does not override California's authority to run its elections. The panel's unsigned (per curiam) order called DOJ's emergency, at least in part, "a self-constructed one". Judge Gabriel Sanchez wrote that the order would "usher in electoral chaos"⁠4.

Judge Patrick Bumatay dissented: "California's actions must be preempted", that is, overridden by federal law. DOJ's case is that ineligible votes cancel lawful ones; the panel majority faulted it for suing less than three weeks before polling day⁠5. Carter is due to hear DOJ's motion at 4pm Eastern time on Tuesday 27 October⁠6.

Deep Analysis

In plain English

The US Justice Department wants California to set aside the mail ballots of more than 20,000 voters it says may not be citizens. The administration has not said publicly how it built that list. A federal appeals court, the 9th Circuit, said on 26 October that it could not step in yet, because the trial judge had not ruled. It sent the case back to that judge, David O. Carter. Carter holds a hearing on 27 October. Polling day is 3 November, so any order would come in the final week.

Deep Analysis
Root Causes

The US Constitution's Elections Clause gives states the power to run federal elections, subject to laws Congress passes. DOJ's case rests on reading a federal criminal statute on non-citizen voting as overriding California's own voter rolls.

The timing problem began with DOJ's own deadline. It appealed because Judge Carter did not rule by a noon deadline on 22 October that DOJ itself had set, which is why the panel found it had no order to review.

First Reported In

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Different Perspectives
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House Republicans under Jim Jordan
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Donald Trump
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Judge David O. Carter
Judge David O. Carter
Carter closed the Justice Department's suit over about 20,000 California mail ballots on 10 November after the department withdrew it, writing that the suit "attempted to disrupt an ongoing election". The closure leaves the department with no court order touching a 2026 California ballot.

Written with AI from Lowdown's published reporting. Not individually reviewed by an editor. Editorial standards.