The Ninth Circuit Court of Appeals ruled 6-5 that the Department of Justice can request California and Washington to sequester ballots cast by suspected non-citizens — a decision handed down hours before midterm polls closed, and one that confirms what election integrity advocates have argued for years while the establishment press called them conspiracy theorists.
The en banc ruling reinstated a 2-1 panel decision from Monday night. Judges Carlos Bea and Consuelo Callahan, both George W. Bush appointees, had stayed a temporary restraining order issued by the U.S. District Court for the Northern District of California. That TRO, secured by plaintiffs including SEIU, AFSCME, LULAC, and the NAACP, had blocked the DOJ and Homeland Security from asking election officials to segregate ballots from voters the government identified as likely non-citizens.
Judge Bea wrote for the majority: "The Government's injury—being barred from requesting that the states segregate ballots from suspected non citizens—cannot be undone after the fact." The court found the government likely to succeed on the merits and suffer irreparable harm without a stay. States can still refuse the DOJ's request — but refusal could carry criminal liability.
Chief Judge Mary Murguia, a Clinton appointee, dissented, arguing the DOJ was using "intimidation and coercive threats to interfere with the state's elections." She wrote: "If Defendants lack the authority to directly compel state election officials to implement their preferred state elections procedures, it is difficult to imagine how Defendants may indirectly coerce state election officials to disregard state eligibility procedures through threat of prosecution."
The U.S. Supreme Court declined to intervene.
What neither side disputes: the federal government identified over 20,000 potential non-citizens on California's voter rolls using a Department of Homeland Security list. What the outlets covering this story can't agree on is whether that list is reliable.
DW framed the list as "likely flawed and full of errors," citing an analysis ordered by a federal judge that found "thousands of US citizens on the list appear to be inexplicably flagged as ineligible to vote." U.S. District Judge David Carter, who originally issued the TRO, warned that singling out ballots would "wreak havoc" on the election process and wrote: "If the executive can discount votes and threaten an ongoing election due to unproven allegations, then our democracy is in danger."
The Post Millennial, by contrast, made no mention of the list's error rate or the citizens incorrectly flagged. DW, for its part, buried the fact that the Ninth Circuit — the most liberal appellate court in the country — found the government likely to succeed on the merits, framing the entire episode as Trump's "fixation on voter fraud" with "unfounded claims."
Here is what the filing shows: a federal court, staffed predominantly by Democratic appointees, looked at the evidence and concluded the government has a legitimate interest in segregating non-citizen ballots. That doesn't mean every name on the DHS list is guilty. It means the court found the claim serious enough to act on — something the institutional press has refused to do for years.
How many non-citizen ballots have already shaped past elections in California and Washington? That question remains unanswered. What the Ninth Circuit just admitted is that it's worth asking.
