Reported / Citable
Background
The United States sued California, its secretary of state, and Los Angeles County shortly before the November 2026 federal election. Federal officials supplied a list of more than 20,000 registered voters they considered likely noncitizens and asked the district court to require election officials to segregate their mail ballots and verify citizenship before counting them. California and the county disputed the list’s accuracy and warned that the requested last-minute procedures could disrupt election systems and lawful voters.
The federal government sought a temporary restraining order, initially asking for action by November 3. The district judge scheduled an October 27 hearing and said a ruling would follow promptly. Before that hearing or any district-court decision, the government filed an appeal and requested emergency relief from the Ninth Circuit, arguing that the district court’s failure to rule immediately amounted to a constructive denial.
The Court’s Holding
A divided Ninth Circuit panel dismissed the appeal for lack of jurisdiction and denied the emergency motion as moot. Ordinarily, an appellate court reviews an order granting or denying an injunction, not a request the trial court is still actively considering. The narrow constructive-denial doctrine can treat inaction as appealable when delay effectively refuses urgently needed relief and creates imminent, severe, irreparable consequences. Those conditions were not met here.
The district court had accommodated the government’s stated timetable by setting a hearing a week before its requested deadline. The government had also known of its voter-roll concerns for months and sought extraordinary relief only after ballot processing was underway. On that record, the district court had not practically denied anything; the government instead attempted to bypass an ongoing trial-court process. The ruling did not decide whether the challenged voters were citizens or whether California’s election practices complied with federal law.
Judges Bennett and Sanchez wrote separately to agree that jurisdiction was absent and to describe additional problems with the requested injunction, including feasibility, voter confusion, reliability of the federal list, and disruption of an election already in progress. Judge Bumatay dissented, reasoning that ballots could be irreversibly mixed and counted before review and that the district court’s timing therefore functioned as a denial.
Key Takeaways
- A TRO applicant generally cannot appeal while the district court is promptly considering the request.
- Constructive denial requires more than ordinary harm from delay; the timing must effectively foreclose meaningful relief.
- A party’s own delay and its stated requested deadline matter to emergency appellate jurisdiction.
- The order resolved jurisdiction only and left the election-law merits for district-court proceedings.
Why It Matters
California election litigators should develop the urgency record before filing, identify the precise point at which relief becomes ineffective, and give the trial court a realistic opportunity to rule. Changing deadlines after a hearing is set can undermine a claim that ordinary process amounts to constructive denial. Emergency appellate papers should distinguish imminent irreparable injury from the inevitable pressure present in fast-moving litigation.
Public agencies responding to late election requests should submit operational evidence: ballot-processing dates, system constraints, staffing, verification tools, and risks to eligible voters. The concurrences show that those facts may influence equitable relief even when the immediate disposition is jurisdictional. The dissent also signals that irreversible vote commingling could support emergency review on a stronger or differently timed record.