Bill Essayli, the First Assistant US Attorney, cast the administration’s request as a matter requiring immediate intervention at a news conference on Thursday. “Every minute that goes by, American citizen votes are being diluted in the state of California. It's an emergency, and we expect the courts to treat it as such.”
The Justice Department began the case on 15 October, suing to stop California from sending and counting mail-in ballots from people alleged to be noncitizens. Four days later, on Wednesday, 21 October, the Trump administration sought a temporary restraining order that would require the state to set aside vote-by-mail ballots from some 20,000 people it said were noncitizens registered to vote.
The government had first asked for a ruling by 3 November 2026, before voting ended in the 2026 federal election. After the case moved from Judge John Holcomb, a Trump appointee, to Judge David Carter, a Clinton appointee, it demanded that Carter decide the application by noon on 22 October 2026.
Carter did not issue a ruling by that deadline. He set an expedited briefing timetable instead, with oral argument scheduled for 27 October.
The Justice Department treated that decision as a constructive denial of its request and immediately appealed to the Ninth Circuit Court of Appeals. The appeals court set argument for Sunday afternoon.
The three-judge panel comprised Mark Bennett and Patrick Bumatay, both appointed by Trump, and Gabriel Sanchez, who was appointed by Biden. The Ninth Circuit currently has 16 Democratic appointees and 13 Republicans.
At the hearing, the judges pressed the government’s lawyer on the legal and factual grounds for emergency relief. The panel questioned whether 18 USC 611, the provision making it a criminal misdemeanor for noncitizens to vote, counted as an election law.
Bumatay asked how soon the government required a decision and suggested Monday night as a possible compromise deadline.
The administration’s list was assembled by taking California’s 2025 voter rolls and supplementing them with unspecified verification procedures by the Department of Homeland Security. Shirley Weber, California’s secretary of state, questioned the list’s research and warned against removing voters without adequate documentation.
California law tells local election officials to begin processing mail-in ballots once they arrive, and no later than 29 days before the election. A Justice Department lawyer said Los Angeles County had already processed more than 500,000 mail-in ballots and separated them from their envelopes.
California Attorney General Rob Bonta’s office moved to dismiss the lawsuit on Wednesday night. The Ninth Circuit has yet to decide whether it will grant the government’s emergency appeal.
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