{"id":166117,"date":"2026-10-26T13:45:24","date_gmt":"2026-10-26T21:45:24","guid":{"rendered":"https:\/\/xira.com\/p\/2026\/10\/26\/ninth-circuit-bats-around-doj-lawyer-in-ca-emergency-vote-purge\/"},"modified":"2026-10-26T13:45:24","modified_gmt":"2026-10-26T21:45:24","slug":"ninth-circuit-bats-around-doj-lawyer-in-ca-emergency-vote-purge","status":"publish","type":"post","link":"https:\/\/xira.com\/p\/2026\/10\/26\/ninth-circuit-bats-around-doj-lawyer-in-ca-emergency-vote-purge\/","title":{"rendered":"Ninth Circuit Bats Around DOJ Lawyer In CA \u2018Emergency\u2019 Vote Purge"},"content":{"rendered":"

On Wednesday, October 21, the Trump administration waltzed into federal court in California, demanding<\/a> a temporary restraining order to force the state to \u201cset aside vote-by-mail ballots\u201d 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 \u201cby November 3, 2026, before the end of voting in the 2026 federal election.\u201d<\/p>\n

Later that day, the government\u2019s case was reassigned from Judge John Holcomb, a Trump appointee, to Judge David Carter, a Clinton appointee and frequent Trump antagonist<\/a>. At which point, the DOJ\u2019s entire posture abruptly changed. At 9 p.m., the government accelerated its timetable, demanding<\/a> that Judge Carter rule on the TRO application \u201cby noon on October 22, 2026\u201d \u2014 i.e.<\/em>, three hours after the court opened for business the next day \u2014 and on an ex parte<\/em> basis.<\/p>\n

Judge Carter did not rule by noon, but he did set an extremely aggressive briefing schedule<\/a>, with oral argument calendared for October 27. That wasn\u2019t fast enough for the Trump administration, which was patently eager to get off the docket of the jurist whose brutal benchslap<\/a> of the DOJ\u2019s plot to seize state voter rolls set the tone for the 26 subsequent rulings in other states. The DOJ declared<\/a> Judge Carter\u2019s briefing schedule to be a \u201cconstructive denial\u201d of its motion for a TRO and filed an immediate appeal<\/a> to the Ninth Circuit.<\/p>\n

TROs, which are definitionally temporary,<\/em> are unappealable under the Federal Rules \u2014 not that this administration has ever bothered to follow<\/a> 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<\/a> oral argument on the government\u2019s 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\u2019s whinging about the supposedly uber-liberal Ninth Circuit, it currently contains 16 Democratic appointees and 13 Republicans \u2014 11 of whom were installed by Trump.)<\/p>\n

And yet, from the very first moment of oral argument<\/a>, it was clear the government was in for a rough ride.<\/p>\n

Right out of the box, Judge Bennett seemed skeptical that the government had standing to appeal the non-denial of a TRO.<\/p>\n

\u201cI want to talk about standing,\u201d he pushed DOJ lawyer Matt Donnelly. \u201cI don\u2019t see how we have jurisdiction.\u201d<\/p>\n

It did not get better.<\/p>\n

Donnelly claimed that the newly-accelerated timetable was occasioned, not by the assignment to Judge Carter, but by the \u201cdiscovery\u201d 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 \u201csegregated\u201d for confirmation of citizenship. But, as Judge Sanchez pointed out, \u00a7 15101<\/a> of California\u2019s Elections Code instructs local election officials to begin processing mail-in ballots as soon as they arrive, \u201cnot later than 29 days before the election.\u201d So no one can credibly claim to be surprised that election officials were doing just that.<\/p>\n

Judge Bennett also expressed doubt about the government\u2019s 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.<\/p>\n

The government fared no better on the merits. The panel debated: whether 18 USC \u00a7 611<\/a>, which makes it a criminal misdemeanor for noncitizens to vote, is an \u201celection law\u201d (it isn\u2019t); whether the executive branch can unilaterally create new requirements for states to police voter rolls without Congressional authorization (it can\u2019t); whether it\u2019s consistent with the Supreme Court\u2019s Purcell<\/em><\/a> principle for a federal court to sweep in and change a state\u2019s election procedures while voting is already underway (it isn\u2019t); whether the Ninth Circuit should be in the position of assessing the credibility of dueling affidavits (it shouldn\u2019t); and most of all, whether the government even have a cause of action in its complaint (it doesn\u2019t).<\/p>\n

As the proceedings wound to a close, Judge Bennett once again returned to the question of standing: \u201cHypothetically, if we were to dismiss this appeal for lack of jurisdiction, what would happen?\u201d<\/p>\n

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\u2019s got scheduled for this coming Tuesday. He would weigh the evidence and create a record for the inevitable appeal by Trump\u2019s aggro minions.<\/p>\n

But the last<\/em> thing this administration wants to do is build a record. It would much rather wave around letters<\/a> from DHS Secretary Markwayne Mullin claiming to have found hundreds of thousands of illegal voters \u2014 maybe even millions! But sadly, it was not meant to be.<\/p>\n

Judge Bumatay, who appeared to be eating something off camera during much of the hearing, seemed resigned to crafting a dissent articulating the government\u2019s 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?<\/p>\n

Donnelly, who seemed not to recognize the lifeline, indignantly insisted that the Ninth Circuit should have already<\/em> ruled by now and further delay would be unconscionable. Judge Bumatay offered Monday night by means of compromise.<\/p>\n

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\u2019s list of non-citizens, compiled by taking California\u2019s 2025 voter rolls \u2014 or some simulacrum which \u201ccame into the possession\u201d of the feds, and no<\/em>, they will not be saying how \u2014 and \u201cenhancing\u201d it through unspecified verification procedures, which presumably means AI.<\/p>\n

Crisis averted \u2026 for the time being, anyway.<\/p>\n

Subscribe to read more at Law and Chaos\u2026.<\/em><\/a><\/p>\n

US v. California<\/a> [Ninth Circuit Docket via Court Listener]<\/p>\n

US v. California<\/a> [Trial Docket via Court Listener]<\/p>\n

\n
\"\"<\/a>
<\/figcaption><\/figure>\n

Liz Dye<\/a>\u00a0and\u00a0Andrew Torrez<\/a>\u00a0produce the Law and Chaos\u00a0Substack\u00a0<\/a>and\u00a0podcast<\/a>.<\/strong><\/em>\u00a0You can subscribe to their Substack by clicking the logo<\/strong><\/em>.<\/p>\n

\n

The post Ninth Circuit Bats Around DOJ Lawyer In CA \u2018Emergency\u2019 Vote Purge<\/a> appeared first on Above the Law<\/a>.<\/p>\n

On Wednesday, October 21, the Trump administration waltzed into federal court in California, demanding<\/a> a temporary restraining order to force the state to \u201cset aside vote-by-mail ballots\u201d 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 \u201cby November 3, 2026, before the end of voting in the 2026 federal election.\u201d<\/p>\n

Later that day, the government\u2019s case was reassigned from Judge John Holcomb, a Trump appointee, to Judge David Carter, a Clinton appointee and frequent Trump antagonist<\/a>. At which point, the DOJ\u2019s entire posture abruptly changed. At 9 p.m., the government accelerated its timetable, demanding<\/a> that Judge Carter rule on the TRO application \u201cby noon on October 22, 2026\u201d \u2014 i.e.<\/em>, three hours after the court opened for business the next day \u2014 and on an ex parte<\/em> basis.<\/p>\n

Judge Carter did not rule by noon, but he did set an extremely aggressive briefing schedule<\/a>, with oral argument calendared for October 27. That wasn\u2019t fast enough for the Trump administration, which was patently eager to get off the docket of the jurist whose brutal benchslap<\/a> of the DOJ\u2019s plot to seize state voter rolls set the tone for the 26 subsequent rulings in other states. The DOJ declared<\/a> Judge Carter\u2019s briefing schedule to be a \u201cconstructive denial\u201d of its motion for a TRO and filed an immediate appeal<\/a> to the Ninth Circuit.<\/p>\n

TROs, which are definitionally temporary,<\/em> are unappealable under the Federal Rules \u2014 not that this administration has ever bothered to follow<\/a> 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<\/a> oral argument on the government\u2019s 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\u2019s whinging about the supposedly uber-liberal Ninth Circuit, it currently contains 16 Democratic appointees and 13 Republicans \u2014 11 of whom were installed by Trump.)<\/p>\n

And yet, from the very first moment of oral argument<\/a>, it was clear the government was in for a rough ride.<\/p>\n

Right out of the box, Judge Bennett seemed skeptical that the government had standing to appeal the non-denial of a TRO.<\/p>\n

\u201cI want to talk about standing,\u201d he pushed DOJ lawyer Matt Donnelly. \u201cI don\u2019t see how we have jurisdiction.\u201d<\/p>\n

It did not get better.<\/p>\n

Donnelly claimed that the newly-accelerated timetable was occasioned, not by the assignment to Judge Carter, but by the \u201cdiscovery\u201d 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 \u201csegregated\u201d for confirmation of citizenship. But, as Judge Sanchez pointed out, \u00a7 15101<\/a> of California\u2019s Elections Code instructs local election officials to begin processing mail-in ballots as soon as they arrive, \u201cnot later than 29 days before the election.\u201d So no one can credibly claim to be surprised that election officials were doing just that.<\/p>\n

Judge Bennett also expressed doubt about the government\u2019s 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.<\/p>\n

The government fared no better on the merits. The panel debated: whether 18 USC \u00a7 611<\/a>, which makes it a criminal misdemeanor for noncitizens to vote, is an \u201celection law\u201d (it isn\u2019t); whether the executive branch can unilaterally create new requirements for states to police voter rolls without Congressional authorization (it can\u2019t); whether it\u2019s consistent with the Supreme Court\u2019s Purcell<\/em><\/a> principle for a federal court to sweep in and change a state\u2019s election procedures while voting is already underway (it isn\u2019t); whether the Ninth Circuit should be in the position of assessing the credibility of dueling affidavits (it shouldn\u2019t); and most of all, whether the government even have a cause of action in its complaint (it doesn\u2019t).<\/p>\n

As the proceedings wound to a close, Judge Bennett once again returned to the question of standing: \u201cHypothetically, if we were to dismiss this appeal for lack of jurisdiction, what would happen?\u201d<\/p>\n

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\u2019s got scheduled for this coming Tuesday. He would weigh the evidence and create a record for the inevitable appeal by Trump\u2019s aggro minions.<\/p>\n

But the last<\/em> thing this administration wants to do is build a record. It would much rather wave around letters<\/a> from DHS Secretary Markwayne Mullin claiming to have found hundreds of thousands of illegal voters \u2014 maybe even millions! But sadly, it was not meant to be.<\/p>\n

Judge Bumatay, who appeared to be eating something off camera during much of the hearing, seemed resigned to crafting a dissent articulating the government\u2019s 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?<\/p>\n

Donnelly, who seemed not to recognize the lifeline, indignantly insisted that the Ninth Circuit should have already<\/em> ruled by now and further delay would be unconscionable. Judge Bumatay offered Monday night by means of compromise.<\/p>\n

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\u2019s list of non-citizens, compiled by taking California\u2019s 2025 voter rolls \u2014 or some simulacrum which \u201ccame into the possession\u201d of the feds, and no<\/em>, they will not be saying how \u2014 and \u201cenhancing\u201d it through unspecified verification procedures, which presumably means AI.<\/p>\n

Crisis averted \u2026 for the time being, anyway.<\/p>\n

Subscribe to read more at Law and Chaos\u2026.<\/em><\/a><\/p>\n

US v. California<\/a> [Ninth Circuit Docket via Court Listener]<\/p>\n

US v. California<\/a> [Trial Docket via Court Listener]<\/p>\n

\n
\"\"<\/a>
<\/figcaption><\/figure>\n

Liz Dye<\/a>\u00a0and\u00a0Andrew Torrez<\/a>\u00a0produce the Law and Chaos\u00a0Substack\u00a0<\/a>and\u00a0podcast<\/a>.<\/strong><\/em>\u00a0You can subscribe to their Substack by clicking the logo<\/strong><\/em>.<\/p>\n

\n

The post Ninth Circuit Bats Around DOJ Lawyer In CA \u2018Emergency\u2019 Vote Purge<\/a> appeared first on Above the Law<\/a>.<\/p>\n","protected":false},"excerpt":{"rendered":"

On Wednesday, October 21, the Trump administration waltzed into federal court in California, demanding a temporary restraining order to force the state to \u201cset aside vote-by-mail ballots\u201d 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. […]<\/p>\n","protected":false},"author":3,"featured_media":166082,"comment_status":"","ping_status":"","sticky":false,"template":"","format":"standard","meta":{"_et_pb_use_builder":"","_et_pb_old_content":"","_et_gb_content_width":"","footnotes":""},"categories":[16],"tags":[],"class_list":["post-166117","post","type-post","status-publish","format-standard","has-post-thumbnail","hentry","category-above_the_law"],"_links":{"self":[{"href":"https:\/\/xira.com\/p\/wp-json\/wp\/v2\/posts\/166117","targetHints":{"allow":["GET"]}}],"collection":[{"href":"https:\/\/xira.com\/p\/wp-json\/wp\/v2\/posts"}],"about":[{"href":"https:\/\/xira.com\/p\/wp-json\/wp\/v2\/types\/post"}],"author":[{"embeddable":true,"href":"https:\/\/xira.com\/p\/wp-json\/wp\/v2\/users\/3"}],"replies":[{"embeddable":true,"href":"https:\/\/xira.com\/p\/wp-json\/wp\/v2\/comments?post=166117"}],"version-history":[{"count":0,"href":"https:\/\/xira.com\/p\/wp-json\/wp\/v2\/posts\/166117\/revisions"}],"wp:featuredmedia":[{"embeddable":true,"href":"https:\/\/xira.com\/p\/wp-json\/wp\/v2\/media\/166082"}],"wp:attachment":[{"href":"https:\/\/xira.com\/p\/wp-json\/wp\/v2\/media?parent=166117"}],"wp:term":[{"taxonomy":"category","embeddable":true,"href":"https:\/\/xira.com\/p\/wp-json\/wp\/v2\/categories?post=166117"},{"taxonomy":"post_tag","embeddable":true,"href":"https:\/\/xira.com\/p\/wp-json\/wp\/v2\/tags?post=166117"}],"curies":[{"name":"wp","href":"https:\/\/api.w.org\/{rel}","templated":true}]}}