Yellow Jacket InitiativeBy E. Lawrence Anderson, Yellow Jacket Initiative
Update, Monday, October 26, 2026. Since this post: on Saturday, Oct 24, California filed letters that a U.S. Attorney sent to county election officials, and on Sunday, Oct 25, the United States filed its reply brief. The Ninth Circuit heard argument Sunday afternoon. As of about 3:10 p.m. ET today we have not seen a ruling from either court. Follow-up: Letters to California counties, and the Justice Department's last brief before Tuesday's hearing. The original text below is unchanged.
As of Saturday, October 24, 2026, about 5:15 p.m. ET (updated from 3:30 p.m. to add the Ninth Circuit's afternoon filings and orders). Sources: the district court filings in United States v. California, No. 2:26-cv-12025-DOC-ADS (C.D. Cal.), Dkts. 64, 74, 76, 79, 85, 90 and 96; the Ninth Circuit filings in No. 26-7070, DE 2, 6, 7, 21, 27, 30, 32, 36, 38 and 43; both dockets as shown on CourtListener (district docket last updated October 24, 6:23 a.m.; Ninth Circuit docket read again about 5:05 p.m. ET, through DE 43).
On Wednesday, Oct 21, the day the Justice Department's lawsuit over California mail ballots was transferred to Judge David O. Carter, he set a hearing. In a text-only order (Dkt. 64) the court "SETS a hearing on the United States Government's Ex Parte Application for Temporary Restraining Order ... for Tuesday, October 27, 2026, at 1:00 PM."
The next day the United States appealed anyway. Its notice of appeal (Dkt. 74, filed Thursday, Oct 22) says: "The Court has not ruled on the United States' application. Given the critical and exigent nature of the relief sought, the Court's silence is a constructive denial." The notice does not mention the hearing order. It relies on a request the United States filed on the evening of Oct 21 asking for a ruling "by 12:00 p.m. on October 22" (Dkt. 67).
The United States' side. A party seeking emergency relief during an election may treat delay as denial so an appeals court can act before the question goes moot; the United States says that is its reason. On Friday, Oct 23, it asked Judge Carter for an injunction pending appeal (Dkt. 76). It cites A.A.R.P. v. Trump, 605 U.S. 91, 94 (2025): a court's "inaction in the face of extreme urgency ... may have the effect of refusing an injunction." It quotes the County's own filing: once a mail ballot leaves its envelope, "there is no way to associate the voter with that ballot" (Dkt. 76 at 3, quoting Dkt. 32-1 at 11). It asks the court to order the listed ballots set aside and citizenship verified before counting, or in the alternative a temporary injunction of up to 30 days.
California's and the County's side. The State says "there is nothing currently to appeal" (Dkt. 79 at 3). It notes the United States first asked for a ruling "by November 3, 2026," a week after the hearing, and argues the court "may disregard" the notice of appeal (Dkt. 79 at 4). The Los Angeles County Registrar's opposition (Dkt. 96) makes the same procedural point first ("there is nothing to enjoin 'pending appeal'") and then argues the merits. It calls the federal list of "more than 20,000 entries" unreliable. It argues that 18 U.S.C. § 611 "regulates voters, not elections officials." It says any urgency is "self-inflicted" because federal agencies had the voter data by May 8 (Dkt. 96 at 1-3). These are arguments, not findings.
The court's response. On Oct 23 Judge Carter ordered additional opposition briefs by 3:00 p.m. PT Saturday, Oct 24, and the United States' reply by 3:00 p.m. PT Sunday, Oct 25. He wrote that he "will rule promptly after hearing from the Parties at oral argument on Tuesday, October 27, 2026" (Dkt. 85 at 2). He also granted 21 states and the District of Columbia leave to file a brief as friends of the court supporting the defendants (Dkt. 90).
The appeal. The Ninth Circuit opened the appeal on Oct 23 as No. 26-7070. That afternoon the United States filed an emergency motion there for an injunction pending appeal, with "relief requested by October 24, 2026" (DE 6). It asks the appeals court to order the listed ballots segregated, "not to cancel" them. The Ninth Circuit ordered the appellees to respond "by Saturday, October 24, 2026 at 12:00 p.m. PDT" (DE 21). California filed its opposition Saturday morning (DE 30). It argues that the appeals court "lacks jurisdiction" because the district court has issued no order to appeal, and that the United States' theory "would also turn the Constitution on its head." The Los Angeles County Registrar filed his response the same morning (DE 32) and an emergency motion to dismiss the appeal for lack of appellate jurisdiction (DE 36). Mi Familia en Acción and SIREN, two groups that had asked to intervene in the district court, moved to intervene in the appeal and asked leave to file an opposition (DE 7, 27); LULAC and NAACP groups filed a similar motion (DE 31). The court also issued a standard briefing schedule for the appeal, with the government's opening brief due Nov 20 (DE 2).
Argument Sunday. Saturday afternoon a Ninth Circuit panel of Judges Bennett, Bumatay and Sanchez ordered remote oral argument by Zoom on Sunday, Oct 25, at 1 p.m. PDT: 60 minutes, 30 minutes a side, with California, Secretary Weber and the Registrar to divide the appellees' time (DE 43). The United States must respond to the County's motion to dismiss, and may reply on its own motion, by 9 a.m. PDT Sunday (DE 38). As of our 5:05 p.m. ET read of the docket, there was no ruling on the motion for an injunction pending appeal or on the motion to dismiss.
Not established: whether a "constructive denial" is appealable here, whether the Oct 27 hearing goes forward as set, whether the Ninth Circuit has jurisdiction over the appeal, how either court will rule on the requests for an injunction pending appeal, and any ruling. A notice of appeal is a procedural step, not proof of error or delay. Filings made after the dockets' last updates may not yet appear.
Calendar: the Ninth Circuit argument is Sunday, Oct 25, tomorrow. The district court hearing is Tuesday, Oct 27, three days from today. Election Day is Tuesday, Nov 3, ten days from today.
Correction note: our Oct 21 post said no hearing date had been set. See the update note on that post.
Primary sources: district court, docket sheet with Dkt. 64 (Dkt. 74-3); Dkt. 74; Dkt. 76; Dkt. 79; Dkt. 85; Dkt. 90; Dkt. 96; district docket. Ninth Circuit, DE 6 (emergency motion); DE 21 (order); DE 30 (California's opposition); DE 32 (County's response); DE 36 (County's motion to dismiss); DE 38 (order); DE 43 (argument order); Ninth Circuit docket.
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