DOJ Asks SCOTUS to Sequester 20,000 Suspected Noncitizen Ballots in California

On the eve of the November 3, 2026, midterm elections, the Trump administration has asked the U.S. Supreme Court for an emergency order requiring California to segregate roughly 20,000 mail-in ballots tied to individuals the Department of Justice identifies as likely noncitizens. Solicitor General D. John Sauer filed the application Monday. 

“The Court should issue a limited injunction directing California to stop commingling suspected illegal ballots with legal ones, pending completion of the United States’ appeal to the 9th Circuit and further review in this Court,” Sauer wrote. He argued California should “segregate mail ballots from persons whom the United States has identified as likely non-citizens” and that the Court should enter an administrative injunction while considering the request.

Sauer stressed the risk: “Once California commingles the challenged ballots with lawful ones, there is no way to get the challenged ballots back. The only way to preserve the district court’s ability to grant relief to the United States after a full merits proceeding, therefore, is to segregate the challenged ballots now.” He called the relief a “modest remedy” that would preserve later options without immediately discarding ballots. 

The official announcement came from Acting Deputy Attorney General Trent McCotter on X: “California has refused to work with the Federal Government to protect against noncitizen voting, which dilutes lawful votes, so @TheJusticeDepthas filed an emergency application with the Supreme Court to require California to segregate mail-in ballots associated with more than 20,000 likely noncitizens until their citizenship can be verified.”

California has refused to work with the Federal Government to protect against noncitizen voting, which dilutes lawful votes, so @TheJusticeDept has filed an emergency application with the Supreme Court to require California to segregate mail-in ballots associated with more than… pic.twitter.com/dZJLyIvd2q

— Acting Deputy Attorney General Trent McCotter (@PADAGMcCotter) November 2, 2026

The Justice Department maintains that noncitizen voting violates federal law and dilutes the votes of U.S. citizens. The full text of the emergency application has not yet been publicly released as a standalone document. 

The filing follows successive DOJ losses in lower courts. Earlier, U.S. District Judge David O. Carter, a Clinton appointee, denied the Justice Department’s temporary restraining order request in the DOJ’s own suit, warning that granting it “would wreak havoc and disrupt the election that is already underway, create a chilling effect on election workers and voters alike, and discount the votes of United States citizens.” He added that “eroded trust in our democracy is irreparable.” 

Separately, Biden-appointed U.S. District Judge Trina L. Thompson of the Northern District of California issued an ex parte temporary restraining order late Friday in a case brought by the Service Employees International Union (SEIU), AFSCME, the League of United Latin American Citizens (LULAC), and the NAACP. 

The order blocks the Department of Justice and Department of Homeland Security from demanding that state and local election officials halt processing, segregate, or refuse to count ballots of registered voters the administration alleges are ineligible (primarily suspected noncitizens), or from threatening those officials with criminal prosecution for processing such ballots in line with state and federal law. The TRO, granted without prior notice to the government, expires at 5 p.m. on November 16 unless extended. 

Judge Thompson wrote: “One of the hallmarks of a fair election is the freedom to exercise the right to vote free from threat, fear, or intimidation. Free exercise of the right to vote is a core tenet of our democracy. It requires safeguarding to ensure full participation and public trust in our elections. Election Day is around the corner. Ballots have already been issued. Americans have already begun voting. Workers have already begun processing ballots. Given the consequences of inaction, the Court sees no reason to delay its ruling.” She found the plaintiffs likely to succeed on claims that the agencies violated Section 11(b) of the Voting Rights Act by intimidating election workers, exceeded authority under the Elections Clause and Tenth Amendment, and acted ultra vires or arbitrarily under the Administrative Procedure Act. 

“Although Defendants claim that their actions are designed to halt unlawful voting by noncitizens, their actions are likely to have the effect of interfering with election administration and disenfranchising lawful voters,” the order states.

A divided Ninth Circuit rejected the government’s emergency efforts in the related sequestration case, with Judges Mark Bennett and Gabriel Sanchez in the majority and Judge Patrick Bumatay dissenting. The majority cited the Elections Clause, the Purcell principle against late election-rule changes, and the suit’s mid-October timing.

In his dissent, Bumatay wrote: “The question — does the federal government have the power to stop this potential attack on the integrity of our elections? Under both federal law and the Constitution, the answer must be ‘yes.’ Simply, the federal government has a sovereign interest in safeguarding federal elections and ensuring that the votes of noncitizens do not undermine our electoral results.”

He further argued that “federal law precludes California from commingling ballots likely cast by aliens with legitimate ballots, because it encourages and induces illegal voting. Stopping that practice for those identified as likely noncitizens is the bare minimum,” warning: “Those questionable ballots are now rolling in. Once those ballots are processed, it would be impossible to identify them, and they must be counted in the election.”

California officials call the list unreliable and say it includes U.S. citizens, yet Los Angeles County admitted it has no mechanism to verify the citizenship of registered voters. According to court filings, the county Registrar “is not equipped or authorized to verify voter citizenship because it does not independently house citizenship-related information beyond the voter attestation.”

First Assistant U.S. Attorney Bill Essayli has framed the DOJ’s request as limited and necessary. “We’re not asking California to take any drastic steps other than to sequester the ballots from the suspected noncitizens,” Essayli said. “We believe it’s at a minimum of 20,000. That’s the floor.” He added that “every minute that goes by, American citizen votes are being diluted in the state of California.” 

On Monday, he posted: “United States citizenship confers particular rights. The most fundamental is the equal right to vote and have that vote counted. California cannot continue counting noncitizen votes. Today we seek a Supreme Court emergency injunction to preserve American elections for American voters only.”

United States citizenship confers particular rights. The most fundamental is the equal right to vote and have that vote counted. California cannot continue counting noncitizen votes. Today we seek a Supreme Court emergency injunction to preserve American elections for American… https://t.co/1cZYHB6AX0

— F.A. United States Attorney Bill Essayli (@USAttyEssayli) November 2, 2026

Polls close at 8 p.m. Pacific Time on November 3. The emergency application is expected to be handled first by Justice Elena Kagan. It is unclear whether the Court will treat the matter as sufficiently urgent for action before or immediately after Election Day, given the volume of ballots already processed and the proximity of the election.