A federal appeals court on Friday rejected the Justice Department’s emergency bid to force California to set aside mail-in ballots associated with roughly 20,000 suspected noncitizens, opening a potential path to the Supreme Court days before the midterm elections. The 9th U.S. Circuit Court of Appeals voted 2-1 to deny an injunction…
Page B51From§Eachthe evening edition — 3 November 2026
Court rejects noncitizen-voter ballot purge four times, approves it on Election Day.
As it ran on the front
The losses were over a number: the department's list of suspected noncitizen voters in California, which had already fallen from 190,000 names to roughly 20,000 after outside analysts checked the math, and which the department answered, days earlier, by asking for sanctions against those same analysts. The courts said no to that too.
On October 26, a three-judge panel of the circuit denied the department's bid to block California from counting mail ballots tied to the 20,000 names. On October 28, a federal district judge rebuffed a second, parallel request to make the state set those ballots aside and verify citizenship afterward. On October 30, the original panel took up the department's own emergency motion and said no a second time, 2-1 — a vote the wire service covering it called the opening of a path to the Supreme Court. On November 2, the Supreme Court took that path and declined to disturb it.…
…(cont) Four times, the answer was no. On the fifth, Tuesday, an en banc panel of the same circuit — eleven judges instead of three — said yes. All together now, in the order's own words: it "suspended restrictions imposed" by the courts below. Not that those courts were wrong. Suspended. The practical effect arrived on the only clock that matters in a general election: the demand that California segregate ballots tied to the 20,000 names came back to life hours before polls closed, with no additional finding about any individual ballot, any individual voter, or any individual noncitizen, because the underlying count was never built to survive contact with one.
The department has now lost the argument on the merits four separate times and won it once, procedurally, on timing. What California's election offices did with an order that arrived on the day itself is not something today's filing says. The number the whole case rests on — 20,000 names, four in ten of them already found to be wrongly flagged — did not get better. It just got a later court date.
“Four courts told them no, and the fifth court flipped it the one day a yes actually does something — that's not a better legal theory, that's just better timing. They lost the case four times and won the clock once, and the clock was the only thing on the ballot that mattered today. Twenty thousand people get their ballots pulled aside to be looked at after the polls they voted in already shut.”
“Look, the en banc court didn't rule on the merits, it just restored the stay pending appeal — there's a difference, and that difference happens to mean the ballots get segregated and the four losses stop mattering. The Department isn't disenfranchising anybody, it's protecting the integrity of a list that's eleven percent of its original size and forty percent wrong, which, yeah, I hear how that sounds. We're just following the process, all the way up, until the process agrees with us.”
Earlier in this story
- DOJ's four Alaska ballot probes yield zero charges, earn Marc Elias a target letter anyway. By Mort · the evening edition, 3 November 2026
- Justice Department answers five court losses by charging 63 voters, seeking sanctions on its own analysts. By Mitch · the evening edition, 3 November 2026
- DOJ cuts noncitizen-voter claim by 170,000, loses in court three times, asks for sanctions on the analysts. By Mitch · the evening edition, 2 November 2026
- Justice Department says it isn't assuming a crime occurred, appeals the lawsuit built on one. By Chip · the morning edition, 2 November 2026
- Tim Scott calls an unproven plot a 'criminal offense' but won't say he'll accept the vote it targets By Lou · the afternoon edition, 1 November 2026
- Trump told the Justice Department to sue to block Alaska's certification if the Republican narrowly loses; the complaint named zero ballots, and the vote is two days off. By Mort · the evening edition, 1 November 2026
The receipts
An expanded panel of the 9th U.S. Circuit Court of Appeals on Tuesday blocked a judge’s order restricting the Trump administration’s demands that election officials segregate ballots from suspected noncitizens and its related warnings of criminal prosecution, handing the Justice Department a decisive victory on Election Day. The en banc…
· DOJ asks appeals court to intervene for California mail-in ballot lawsuit from the morgue, 23 Oct 2026
· Court blocks bid by Trump DoJ to stop California from counting mail-in ballots from the morgue, 26 Oct 2026
This page is a back-issue: the story as it ran, receipts as they were. The current edition is at the front. The byline is a pen name for a column drafted by a machine and checked by the editor: how this is made.