By The Editors

Written by The Editors

Estimated Reading Time: 3 minutes

A federal appeals court shut down the Justice Department’s bid to set aside 20,000 California ballots, and two of the three judges were Trump appointees. Legal momentum in the marquee pre-election fight just swung to California.

On Oct. 26, a Ninth Circuit panel dismissed the Justice Department’s emergency appeal for lack of jurisdiction and denied its injunction request as moot, refusing to force California to segregate roughly 20,000 mail ballots the department had flagged as belonging to suspected noncitizens (SOURCE HERE). A separate district-court hearing before Judge David O. Carter was set for Oct. 27.

Why it matters: This was the administration’s most aggressive pre-election move in California, and it collapsed at the appellate level eight days out, with Trump-appointed judges leading the skepticism.

Where the energy is moving

From: The Justice Department’s election-integrity offensive, which lost its jurisdictional footing to compel emergency relief.

To: California’s election machinery and the district court’s unhurried process, shielded mid-election by the Purcell principle against last-minute changes.

The signal: A 2-1 ruling dismissing the appeal in case No. 26-7070, with the emergency injunction denied as moot (SOURCE HERE).

What it means for you: If you fund election-integrity litigation, this is a case study in how rushed, last-minute filings lose, and where the better fights are.

How it unfolded

The department flagged a list of more than 20,000 registrants it called “likely” noncitizens, but the court stressed the claim is unproven; Judge Gabriel Sanchez called the allegation “currently unsubstantiated” (SOURCE HERE).

The department leapt to the appeals court after the district judge did not rule on its request within about 15 hours, calling the silence a “constructive denial,” a theory the panel found rested on a “largely self-created” emergency (SOURCE HERE).

Judges Mark Bennett and Gabriel Sanchez, both Trump appointees, formed the majority; Judge Patrick Bumatay, also a Trump appointee, dissented (SOURCE HERE).

The ruling turned on jurisdiction, not the merits, so the underlying question of whether noncitizens are on California’s rolls is still live in the district court.

What they’re saying

Bumatay’s dissent is the conservative hook, warning the stakes are permanent: “once a ballot is separated from its envelope, it’s impossible to identify who cast it,” so that “the illegal vote of the alien is forever mixed with legitimate ballots,” and concluding “federal law preempts what California has done” (SOURCE HERE).

What The Other Side Is Doing And How To Neutralize It

California and the voting-rights groups are calling this a clean win against voter suppression, and the loss is real. The disciplined conservative response is to separate the goal from the vehicle. The goal, keeping noncitizens off the rolls and their ballots from counting, is legitimate and most voters share it.

The vehicle was weak: the department sat on the issue, then demanded a judge rule within 15 hours, then treated his silence as an appealable denial, a maneuver even a Trump-appointed majority would not accept. Losing that way sets bad precedent and hands the other side a talking point. Bumatay’s dissent points to the one genuinely hard problem: once ballots are separated from envelopes, the damage cannot be undone, which is a real argument for pre-election verification rather than post-election litigation.

The helpful frame is that election-integrity work wins in the off-season, through clean voter rolls, registration audits, and list maintenance litigated months ahead, not through emergency injunctions filed days before an election that good judges throw out.

For the serious version of that work, the Public Interest Legal Foundation litigates voter-roll accuracy year-round (VISIT HERE). The move to watch is today’s hearing before Judge Carter and whether the department runs to the Supreme Court, because the appellate door just closed.

Rolling backward

Right cause, wrong weapon, deserved loss. The ballots will be counted, and a panel of two Trump appointees said the department’s emergency theory didn’t even clear the jurisdictional bar. Bumatay’s dissent preserves the strongest argument, that commingled ballots cannot be untangled, but a dissent is not a win.

For readers, treat the outcome as all but settled at the appellate level and watch the district hearing today and any move to the Supreme Court. The lesson for the right is discipline: integrity cases are won early and on clean records, not in the final week on an emergency.

Facts are prickly things,

-The Editors

Liberty · Upstream of the Swamp · October 27, 2026

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