Yellow Jacket InitiativeBy E. Lawrence Anderson, Yellow Jacket Initiative
Update, Tuesday, November 3, 2026. This post said no Supreme Court application had been filed. That was accurate when written. The United States filed one on Nov. 2 (No. 26A624), and the Court denied it the same day without stated reasons. Follow-up: United States v. California: the Supreme Court declines to order California to set aside listed voters' mail ballots. The original text below is unchanged.
As of Monday, November 2, 2026, about 7:45 a.m. ET. Primary source: the Ninth Circuit's published order in United States v. California, No. 26-7231 (Oct. 30, 2026), 39 pages, read from the court's own site. Every quotation below was checked against the order's text.
On Friday, Oct. 30, four days before Election Day, a three-judge panel of the U.S. Court of Appeals for the Ninth Circuit denied the Justice Department's emergency motion in United States v. California, No. 26-7231. The order is published and per curiam. Judges Mark J. Bennett and Gabriel P. Sanchez formed the majority; Judge Patrick J. Bumatay dissented.
The order's disposition, in its words: "We deny the United States's motion because the United States has failed to meet its burden in showing that an injunction pending appeal is warranted."
The government's position, first. The United States has a real interest in enforcing 18 U.S.C. 611, which makes voting by a noncitizen in a federal election a crime. It asked that listed mail ballots be set aside and the voters' citizenship checked before counting, not that ballots be cancelled. The panel decided only that the government had not met a demanding standard for emergency relief during an election already underway, and one of the three judges would have granted relief.
What the government asked for. The United States sued California and Los Angeles County on Oct. 15 (C.D. Cal. No. 2:26-cv-12025). It argues that the Supremacy Clause bars them from knowingly sending mail ballots to people federal agencies identified as "likely" noncitizens, and counting those ballots, in violation of section 611. Judge David O. Carter denied a temporary restraining order on Wednesday, Oct. 28. The government appealed and asked the Ninth Circuit for an injunction while the appeal goes forward.
Two dates for the list. The order says the United States provided its list ("October List") to the defendants on Oct. 12, 2026. The complaint and our earlier posts give Oct. 13. We report both and do not reconcile them.
What the majority held.
- Jurisdiction. The panel dismissed the government's first appeal (No. 26-7070) on Oct. 26 for lack of jurisdiction. This time it found jurisdiction: after the adversarial hearing on Oct. 27, the order denying the TRO was "tantamount to a denial of a preliminary injunction."
- The standard. Because the government sought a mandatory injunction, requiring the defendants to segregate ballots and verify voters' citizenship, its burden was "doubly demanding."
- Section 611. "Nothing in § 611, a statute that criminalizes voting by a noncitizen, preempts California's comprehensive statutory scheme that has been duly enacted under the Elections Clause." The panel wrote that "Noticeably absent from the statute is an express preemption provision or any language setting forth regulations for how a state deals with citizenship challenges to vote-by-mail ballots," and that the statute has no provision "authorizing the Department of Justice to take charge of or intervene in a state's administration of an ongoing election." It added: "If the United States believes different procedures are necessary for vote-by-mail ballots, we believe it should take that suggestion to Congress, not the courts."
- A narrow holding, by its own terms. "We do not hold that § 611 could never preempt any state actions or law under the Elections Clause, as that broad question is not before us."
- The NVRA. The National Voter Registration Act's 90-day provision, 52 U.S.C. 20507(c)(2), "provides an independent reason to conclude that the United States has not shown a clear likelihood of success."
- Equities and timing. The panel quoted the district court's finding that the requested relief "would provoke catastrophic change, upending the administration of the election," and applied the Purcell principle against late changes to election rules: "The Purcell principle applies with even greater force" when, as here, an election is already underway.
The order also records that the district court said it did not have the "appropriate time" to develop a full record on the "systems" and "algorithms" behind the list, appointed a special master to review the government's voter-roll data, and suggested another hearing in about two weeks, after Election Day. The district court's Oct. 29 order set that hearing for Friday, Nov. 13 (our Oct. 29 post).
The dissent. Judge Bumatay opened with Justice Story's Commentaries: a sovereign unable to compel "the performance ... of public duties" would be "a most extraordinary anomaly." He continued: "In this case, the federal government believes that 20,000 noncitizens are registered to vote in California." Referring to his dissent in the first appeal, he wrote that "the federal government has satisfied the requirements for injunctive relief."
What this does and does not settle. This is a ruling on an emergency motion, not a decision on the appeal; the appeal itself continues, and so does the case in the district court. The order does not test the accuracy of the government's list; that is the special master's task, and the hearing comes after the election.
What is still open.
- A Supreme Court application. Press reports say Justice Department lawyers have said they would go to the Supreme Court (their statement, as reported). As of Nov. 2, the Supreme Court's docket showed no application in this case; we checked every application posted through No. 26A623, docketed Oct. 30.
- The district docket since Oct. 29. The latest filing we could read is the County's Oct. 29 opposition to the government's renewed request (Dkt. 162). We have not confirmed any later entry.
- Press reports on Oct. 30 (Associated Press) say a federal judge also ordered the Justice Department to share the list with lawyers for the Coalition for Humane Immigrant Rights and the UCLA Voting Rights Project, and that the department appealed. We have not read that order and do not know which case it was entered in.
Why we are following it. This is the first appellate ruling on the merits of the government's theory that section 611 lets it direct a state to set aside ballots in a federal election. A suit filed in Washington the same day already relies on it.
Earlier: United States v. California: the judge denies the restraining order, the government appeals, and a special master will examine the list (Oct. 29).
Primary source: Order, United States v. California, No. 26-7231 (9th Cir. Oct. 30, 2026) (per curiam; Bumatay, J., dissenting). Also: Dkt. 162 (County opposition, Oct. 29); district docket.
Read the text.
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