DOJ Appeals After Federal Judge Rejects Request to Sequester 20,000 California Ballots

The Department of Justice has appealed a federal judge’s refusal to order California to temporarily set aside roughly 20,000 mail ballots linked to people the government has identified as likely noncitizens. The DOJ’s request was limited: segregate the ballots pending citizenship verification, not discard them in advance.

U.S. District Judge David O. Carter (a Clinton appointee) denied the temporary restraining order on October 28. He ruled that the late request would “wreak havoc and disrupt the election that is already underway,” create a chilling effect, and risk discounting the votes of U.S. citizens. Carter described the government’s eleventh-hour timing as largely self-created and questioned the reliability of its list. The DOJ immediately filed notice of appeal to the Ninth Circuit and said it would seek emergency relief.

What the DOJ actually requested

First Assistant U.S. Attorney Bill Essayli, who argued the case, has repeatedly stated the position in plain terms. The DOJ did not ask to cancel, void, or purge any ballots. It asked California and county officials to sequester (set aside and hold) ballots associated with the flagged individuals until citizenship could be checked.

Essayli told the court: “We have not asked to void any ballots … (or) to cancel any ballots.” In public statements he added: “We’re not asking California to take any drastic steps other than to sequester the ballots from the suspected noncitizens.” The department’s position is that segregation preserves the status quo so that any ballots later confirmed as ineligible can still be removed, while verified citizen ballots can still be counted. Noncitizen voting in federal elections is a crime under 18 U.S.C. § 611.

The list of approximately 20,000 names came from matching California voter rolls against federal immigration, Social Security, and passport records. The DOJ has described it as a “high confidence” floor rather than a ceiling. State officials have disputed the list’s accuracy; Los Angeles County sampling reportedly found a high percentage of U.S.-born individuals in a 200-person sample.

Why timing and processing matter

California mails ballots to all registered voters. Once a returned ballot’s signature is verified, the ballot is typically separated from its identifying envelope and enters the general count. At that point the individual ballot can no longer be retrieved or removed even if the voter is later proven ineligible. The DOJ has argued that continued processing without segregation creates “untraceable” dilution of citizen votes.

Essayli stated after the ruling: “Every day, more ballots are processed by election officials. This ongoing emergency disenfranchises American citizens through dilution.” The DOJ sued on October 15 after California and Los Angeles County declined a 48-hour request to review the list and set the associated ballots aside.

California’s position is that the data is unreliable, that complying would disrupt an election already underway, and that the state has the primary constitutional role in administering its elections. Officials have characterized the effort as federal overreach. Judge Carter agreed that the requested remedy would likely violate longstanding principles of state control over elections and could disenfranchise eligible voters on the basis of contested data.

Status and next steps

An earlier Ninth Circuit panel (2-1) had already dismissed a premature DOJ emergency appeal because the district court had not yet ruled. Two judges on that panel also expressed skepticism on the merits. The new appeal of Carter’s denial is now pending. Election Day for the midterms is November 3; results must be certified by early December. Carter indicated further proceedings, including expert testimony, could occur after the election.

The practical distinction is straightforward. Sequestering the ballots keeps them identifiable so that citizenship can still be verified and any confirmed ineligible ballots can still be excluded. Mixing them into the general count eliminates that option. The DOJ is seeking the former; California is proceeding with the latter while the litigation continues.