# Ninth Circuit Refuses, 2-1, to Order California to Set Aside 20,000 Ballots Tied to Suspected Noncitizens; Judge Bumatay Dissents

The panel said the government's urgency was partly of its own making. The case is back before a district judge, who heard arguments Tuesday and has not ruled. The election is Nov. 3.

- Section: [Politics](https://rightnewsrightnow.com/politics/)
- Published: 2026-10-28
- By: RightNewsRightNow Staff
- Canonical page: https://rightnewsrightnow.com/articles/ninth-circuit-denies-doj-bid-set-aside-20000-california-noncitizen-ballots-2-1-bumatay-dissent-breitbart/

A federal appeals court has turned down the Justice Department's emergency request to pull roughly 20,000 California mail ballots out of the count, Breitbart reports.

The ruling. In a 2-1 decision handed down Monday, the Ninth Circuit denied the DOJ's request to set the ballots aside while the voters' eligibility is reviewed. The majority wrote that the government's urgency was partly of its own making. Judge Patrick Bumatay dissented, arguing that the federal government has a sovereign interest in protecting federal elections.

How it started. The DOJ sued California on Oct. 15 over a list of more than 20,000 registered voters that federal agencies flagged as likely noncitizens. Prosecutors wanted the state to verify each name or keep those ballots separate. California refused, disputing both the data and the short deadline.

The government's argument. Federal prosecutor Bill Essayli said California told the court at a hearing that it does not independently check voters' citizenship and that any ballot already cast by a noncitizen would be counted unless the judges stepped in. He said that is why his office sought the emergency order, arguing that illegal votes dilute legal ones.

How the list was built. According to the government, investigators started with California's voter rolls, added commercial data to public records, checked the names against immigration and Social Security files to screen out citizens and the dead, and then had federal investigators review the rest by hand.

At the hearing. The three-judge panel heard the case Sunday and did not appear convinced. One Trump-appointed judge told the government that the order it wanted ran against the very law California had passed. The panel also asked why it should step in before the district court had ruled.

The wider push. Last week, prosecutors charged 28 green card holders in California with illegally registering or voting and arrested 11 of them. The DOJ said all 28 appeared on the flagged list.

California's side. The state's Democratic attorney general has argued the federal theory would turn the Constitution on its head by letting Washington dictate how a state runs its elections. Los Angeles County has said a sample of the federal list turned up people who reported being born in the United States. A DHS official pushed back in a sworn statement, saying U.S. Citizenship and Immigration Services records showed none of the sampled names were U.S.-born.

What is next. The case has returned to the district court. A judge heard arguments Tuesday and did not immediately rule. Election Day is Nov. 3.

Note for readers: the list is the government's own, California and Los Angeles County dispute it, and no court has found that the 20,000 are noncitizens. We have not reviewed the opinion itself.

## Source

Original reporting: [Breitbart](https://www.breitbart.com/immigration/2026/10/27/ninth-circuit-wont-order-california-to-set-aside-noncitizen-ballotsninth-circuit-denies-doj-california-noncitizen-ballots/)