On Wednesday, October 21, the Trump administration waltzed into federal court in California, demanding a temporary restraining order to force the state to “set aside vote-by-mail ballots” from some 20,000 people it claims are noncitizens registered to vote. The motion was filed four days after the original complaint, and the government expressed no particular urgency. In bold lettering, they said they just wanted a ruling “by November 3, 2026, before the end of voting in the 2026 federal election.”
Later that day, the government’s case was reassigned from Judge John Holcomb, a Trump appointee, to Judge David Carter, a Clinton appointee and frequent Trump antagonist. At which point, the DOJ’s entire posture abruptly changed. At 9 p.m., the government accelerated its timetable, demanding that Judge Carter rule on the TRO application “by noon on October 22, 2026” — i.e., three hours after the court opened for business the next day — and on an ex parte basis.
Judge Carter did not rule by noon, but he did set an extremely aggressive briefing schedule, with oral argument calendared for October 27. That wasn’t fast enough for the Trump administration, which was patently eager to get off the docket of the jurist whose brutal benchslap of the DOJ’s plot to seize state voter rolls set the tone for the 26 subsequent rulings in other states. The DOJ declared Judge Carter’s briefing schedule to be a “constructive denial” of its motion for a TRO and filed an immediate appeal to the Ninth Circuit.
TROs, which are definitionally temporary, are unappealable under the Federal Rules — not that this administration has ever bothered to follow that particular regulation. And yet, the administration demanded immediate appellate review of a TRO that was never even considered! So it was a bit worrisome on Saturday when the Ninth Circuit actually scheduled oral argument on the government’s fakakta appeal for Sunday afternoon. More worrisome was the panel assigned: Judges Mark Bennett and Patrick Bumatay, both Trump appointees, along with Judge Gabriel Sanchez, who was appointed by Biden. (For all of the right-wing’s whinging about the supposedly uber-liberal Ninth Circuit, it currently contains 16 Democratic appointees and 13 Republicans — 11 of whom were installed by Trump.)
And yet, from the very first moment of oral argument, it was clear the government was in for a rough ride.
Right out of the box, Judge Bennett seemed skeptical that the government had standing to appeal the non-denial of a TRO.
“I want to talk about standing,” he pushed DOJ lawyer Matt Donnelly. “I don’t see how we have jurisdiction.”
It did not get better.
Donnelly claimed that the newly-accelerated timetable was occasioned, not by the assignment to Judge Carter, but by the “discovery” that Los Angeles County has already processed more than 500,000 mail-in ballots, separating them from their envelopes and ensuring they could never be “segregated” for confirmation of citizenship. But, as Judge Sanchez pointed out, § 15101 of California’s Elections Code instructs local election officials to begin processing mail-in ballots as soon as they arrive, “not later than 29 days before the election.” So no one can credibly claim to be surprised that election officials were doing just that.
Judge Bennett also expressed doubt about the government’s right to emergency relief, since the DOJ could have filed this thing months ago when Trump started making noise about hundreds of thousands of ineligible voters, and instead chose to wait until voting was already underway.
The government fared no better on the merits. The panel debated: whether 18 USC § 611, which makes it a criminal misdemeanor for noncitizens to vote, is an “election law” (it isn’t); whether the executive branch can unilaterally create new requirements for states to police voter rolls without Congressional authorization (it can’t); whether it’s consistent with the Supreme Court’s Purcell principle for a federal court to sweep in and change a state’s election procedures while voting is already underway (it isn’t); whether the Ninth Circuit should be in the position of assessing the credibility of dueling affidavits (it shouldn’t); and most of all, whether the government even have a cause of action in its complaint (it doesn’t).
As the proceedings wound to a close, Judge Bennett once again returned to the question of standing: “Hypothetically, if we were to dismiss this appeal for lack of jurisdiction, what would happen?”
What would happen is that Judge Carter would immediately pick up where he left off and do his job as the designated fact-finder, conducting that TRO hearing he’s got scheduled for this coming Tuesday. He would weigh the evidence and create a record for the inevitable appeal by Trump’s aggro minions.
But the last thing this administration wants to do is build a record. It would much rather wave around letters from DHS Secretary Markwayne Mullin claiming to have found hundreds of thousands of illegal voters — maybe even millions! But sadly, it was not meant to be.
Judge Bumatay, who appeared to be eating something off camera during much of the hearing, seemed resigned to crafting a dissent articulating the government’s argument more cogently than the hapless Donnelly could muster. And so, as the minutes ticked down, he asked how quickly the government needed a ruling dismissing the appeal to get things back on track. Could it live with one by Tuesday morning?
Donnelly, who seemed not to recognize the lifeline, indignantly insisted that the Ninth Circuit should have already ruled by now and further delay would be unconscionable. Judge Bumatay offered Monday night by means of compromise.
Either way, the Ninth Circuit is about to bounce this appeal back to Judge Carter so he can do his job and evaluate the credibility of DHS’s list of non-citizens, compiled by taking California’s 2025 voter rolls — or some simulacrum which “came into the possession” of the feds, and no, they will not be saying how — and “enhancing” it through unspecified verification procedures, which presumably means AI.
Crisis averted … for the time being, anyway.
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US v. California [Ninth Circuit Docket via Court Listener]
US v. California [Trial Docket via Court Listener]
Liz Dye and Andrew Torrez produce the Law and Chaos Substack and podcast. You can subscribe to their Substack by clicking the logo.
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