Reported / Citable
Background
Four days before California’s November 2026 election, the Ninth Circuit refused the federal government’s request to force California and Los Angeles County to segregate vote-by-mail ballots associated with roughly 20,000 people federal agencies had identified as likely noncitizens. The government wanted officials to verify those voters’ citizenship before separating ballots from their envelopes and counting them.
Federal officials had delivered their list to state and county election officials on October 12. California and the county questioned the list’s reliability and declined to create a new segregation process during an election already underway. The United States then sued under the Supremacy Clause, arguing that the federal criminal prohibition on noncitizen voting, 18 U.S.C. section 611, displaced California’s election procedures. After the district court held a two-hour adversarial hearing and denied a temporary restraining order, the government sought an injunction pending appeal.
The appellate panel consisted of Judges Mark J. Bennett, Patrick J. Bumatay, and Gabriel P. Sanchez. The per curiam majority denied emergency relief; Judge Bumatay dissented. Although temporary restraining orders ordinarily are not appealable, the majority treated this denial as the practical equivalent of denying a preliminary injunction because the election deadline would otherwise foreclose meaningful interim review.
The Court’s Holding
The majority held that the United States had not carried the especially demanding burden for a mandatory injunction, which would require election officials to take affirmative steps they otherwise would not take. Section 611 criminalizes voting by a noncitizen, but it does not expressly preempt state law, prescribe how states must investigate citizenship challenges, or authorize federal officials to take over administration of an ongoing election. The Elections Clause leaves election mechanics with states unless Congress displaces their choices, and the majority found no clear congressional command overriding California’s detailed ballot-challenge and voter-eligibility system here.
The National Voter Registration Act supplied an independent obstacle. Its 90-day quiet period generally bars systematic programs for removing ineligible voters immediately before a federal election. The requested review covered a batch of about 20,000 registered voters, while the district court found that federal officials had supplied no error rate, reliable validation benchmark, or adequate explanation of the data-matching process. Because California law could require cancellation of registration after proof of ineligibility, the request implicated more than temporarily holding ballots.
The remaining injunction factors also favored California. The government had not shown likely irreparable harm on a record where its list’s reliability was disputed. By contrast, the district court credited evidence that hastily redesigning election systems could jeopardize tabulation and certification and disenfranchise eligible voters. The Purcell principle, which cautions federal courts against changing election rules close to Election Day, carried added force after voting had begun. Judge Bumatay would have granted limited relief, reasoning that section 611 preempted ballot commingling and that courts historically have enjoined state election practices that conflict with federal law.
Key Takeaways
- A federal criminal prohibition does not automatically dictate state election-administration procedures; the asserted conflict must be grounded in the statute’s text and the specific state practice at issue.
- An order compelling officials to build a new ballot-segregation and verification process is a mandatory injunction, so the law and facts must clearly favor the applicant.
- A batch challenge to thousands of voters near Election Day may implicate the National Voter Registration Act’s 90-day restriction on systematic voter-removal programs.
- Courts applying Purcell will consider operational disruption, voter confusion, and the risk of disenfranchisement, especially once voting is underway.
- A nominal temporary restraining order may be immediately appealable when an adversarial hearing occurred and election timing makes later preliminary relief ineffective.
Why It Matters
For California election lawyers and public agencies, the order emphasizes that emergency federal preemption theories need a precise statutory bridge to the operational relief requested. General reliance on election integrity and a criminal statute was not enough to compel a mid-election overhaul, particularly without validated data and a workable implementation plan.
The decision also gives litigators a useful roadmap for election emergencies: establish data reliability early, explain how proposed relief fits existing systems, address federal voter-list restrictions, and file before the Purcell concern becomes decisive. The dissent shows that the underlying preemption question remains contested, but the operative ruling leaves California’s established procedures in place for this election.