The Justice Department asked a federal appeals court on Friday to order California and Los Angeles County to separate the mail ballots of more than 20,000 registered voters the government has identified as likely noncitizens, and to hold those ballots out of the tally until each voter's citizenship is confirmed.
The emergency motion and a companion request for an injunction landed on the Ninth Circuit's docket Friday afternoon. The case names the state, Secretary of State Shirley N. Weber and Dean C. Logan, the Los Angeles County registrar-recorder and county clerk. Prosecutors asked the court to rule by Saturday, according to the New York Post and Raw Story.
Their argument turns on timing. Once election workers pull ballots from their envelopes, the government says, there is no way to tell which vote came from which voter, and the motion warns that Los Angeles County has already processed more than 331,000 mail ballots, the Post reported.
"Every minute that goes by, American citizen votes are being diluted in the state of California," Bill Essayli, the first assistant U.S. attorney for the Central District of California, said Thursday in remarks quoted by the Post. "It's an emergency, and we expect the courts to treat it as such."
The appeal comes before the trial judge has ruled. U.S. District Judge David O. Carter set a hearing for Tuesday on the department's request for a temporary restraining order. The department had pressed him to decide by noon Thursday, and when that deadline passed it filed a notice of appeal that evening, treating his silence as a constructive denial, RedState reported in a detailed account of the week's filings. The department cites a 2025 Supreme Court decision to support its view that the delay amounts to a refusal it can appeal, Raw Story reported.
"As of the time of this filing, no order has issued, and because of the extreme urgency of this emergency that continues with each passing minute, the United States brings this motion," the department told the appeals court. Its filing says election officials "are presently counting potentially noncitizen ballots" and describes the dispute as "a case that must be resolved by November 3," the date of the midterm election, according to Raw Story's review of the motion.
The fight began on Oct. 15, when the department sued after state officials did not act on its request to segregate returned ballots from people on its list until their citizenship could be checked. Carter, who in January dismissed a separate Justice Department lawsuit seeking California's voter rolls, took over the new case on Oct. 21 under the court's related-case rules, RedState reported. Shortly after 6 a.m. Pacific time on Friday, the department asked Carter to order the ballots set aside while the appeal proceeds and to rule by noon. At 11:14 a.m., its lawyers told the other parties a Ninth Circuit filing was imminent, Raw Story reported.
Carter has set his own timetable. A Friday order gave opponents of the government's request until 3 p.m. Saturday to file briefs, gave the department until 3 p.m. Sunday to reply, and said he "will rule promptly" after hearing from the parties on Tuesday, one week before Election Day. On the appellate side, the clerk's briefing schedule for the appeal, issued Friday morning, would not require the government's opening brief until Nov. 20, more than two weeks after the election, the docket shows.
California opposes the request. The state's lawyers told Carter that "there is nothing currently to appeal" and called the department's demand for a next-day ruling a "dilatory, after-hours pivot" that "does not create a valid basis for its purported appeal." Los Angeles County has attacked the list itself, calling it "unreliable" in an Oct. 20 court filing. In a preliminary review of a 200-person sample, the county found that 38.9 percent of records with a meaningful birthplace entry showed a person born in the United States, Raw Story reported, citing the filing.
The government points to criminal cases already brought. On Oct. 19, federal prosecutors in California announced charges against 28 legal permanent residents accused of registering to vote illegally, many of them also accused of casting ballots, in an effort they called Operation Protect the Vote, RedState reported. The Post noted that federal law bars noncitizens from voting in federal elections and that the government says some people have already been charged over illegal registration and voting.
Two immigrant advocacy groups, Mi Familia en Acción and the Services, Immigrant Rights and Education Network, moved Friday to join the appeal. As of Friday evening, the docket showed no order from the Ninth Circuit on the department's motion.