People extract ballots from their envelopes and prepare them to be scanned for counting in the vote-by-mail processing commissions area of the Orange County Registrar of Voters office in Santa Ana, California, October 28, 2026.
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Apu Gomes/Getty Images
A federal judge has rejected an unprecedented emergency request from the Justice Department to segregate thousands of California ballots in the midterm elections.
The Justice Department wants California election officials to stop processing ballots for 20,000 people who federal officials say are “probably” noncitizens.
State and local officials in California have countered that the DOJ’s list of “probable” noncitizens is unreliable, with a preliminary analysis from Los Angeles County showing that many of the people on the list are not registered voters. Officials also say that setting aside ballots just days before Election Day, when voting and mail-in ballot processing is already underway, would be illegal and impractical and would disenfranchise eligible voters.
In his 26-page ruling issued Wednesday evening, U.S. District Judge David Carter, a Clinton appointee, denied the Justice Department’s request for a temporary restraining order to stop the processing of the ballots in question.
“Never before in American history has the federal government, on the eve of an election, sought to force a state and local government to abandon its own constitutional election procedures and bend to the will of the executive branch,” he wrote.
Carter also expressed concern about taking actions that could disenfranchise eligible voters and create chaos.
“Once a vote is segregated, lasting harm occurs,” Carter wrote at the end of his order. “If the Executive Branch can overturn votes and threaten ongoing elections based on unproven allegations, then our democracy is in danger. This Court refuses to participate in such a process.”
The judge said the federal government can solve the problem by continuing to charge people with the crime of voting illegally as non-citizens. DOJ officials say that over the past two months they have charged dozens of people for registering or voting without being a U.S. citizen.
The DOJ’s California lawsuit, which was filed Oct. 15, is part of a series of unprecedented actions the department has taken in states near Election Day, raising alarms about federal interference in state election procedures.
As in California, federal prosecutors on Monday asked Washington state election officials to review a list of 400 registered voters who the DOJ says are likely noncitizens. And last week, the DOJ filed an unusual lawsuit in Alaska aimed at blocking the state from certifying the results of its Senate race if the Republican incumbent loses because of votes for a distant candidate with a similar name who is accused of being a spoiler candidate.
In the most recent court filing in California, state Attorney General Rob Bonta, a Democrat, asked the judge to consider the circumstances of the DOJ’s request. “This litigation is a precursor to further interference here in California,” Bonta wrote. “The Court must not allow itself to be drawn into this frightening degradation of democratic values and constitutional principles.”
The Justice Department is expected to appeal Carter’s refusal, and the case could ultimately end up before the U.S. Supreme Court.
The DOJ argued that the matter was urgent since the ballots were already being processed. Once signatures are verified on returned ballot envelopes, the ballots are separated from their envelopes to maintain voter privacy and it becomes impossible to recover an ineligible ballot.
Federal prosecutors have argued that non-citizen votes dilute the votes of U.S. citizens. Audits and surveys have shown that non-citizen voting is extremely rare.
The accuracy of the DOJ’s list of “probable” noncitizens is still a matter of controversy.
A Los Angeles County analysis of a small sample of people on the Justice Department’s list found that a significant portion said in records that they were born in the United States. But Nicolas Bartell, a top official with U.S. Citizenship and Immigration Services, disputed that in recent court filings, writing that his office’s review of those individuals found that none were born in the United States.
Bartell acknowledged that the review found that four of those individuals “could claim U.S. citizenship.”
He also provided the court with additional details about the methodology the federal government used to create the list in recent court filings.
But Kassra Oskooi, a political scientist at the University of Delaware who was selected as an expert witness by the voting rights groups intervening in the case, responded in his own statement to the court that he thought the USCIS matching protocol “would likely be unreliable.”
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