LA County Says 550,000 Ballots Already Processed as Ninth Circuit Hears Noncitizen Ballot Fight Sunday

California's answer to the Justice Department is in, and it boils down to this: the ballots are already being counted, so it's too late to stop.

On Saturday, California and Los Angeles County filed their responses at the Ninth Circuit Court of Appeals, fighting DOJ's emergency request to have the mail ballots of more than 20,000 suspected noncitizens set aside until their citizenship is checked. In a footnote, Los Angeles County gave a new number: it now estimates it has processed about 550,000 mail ballots, up from the 331,000 it reported in its sworn declaration earlier in the week (county filing).

Once a mail ballot is processed in California, it is pulled from its envelope and can't be traced back to the voter. Every ballot in that 550,000 that came from someone on DOJ's list is now mixed in for good.

A three-judge panel will hear the fight Sunday afternoon in an hour-long remote argument on Zoom, 30 minutes a side, according to the court's order. The judges are Mark Bennett and Patrick Bumatay, both appointed by President Trump, and Gabriel Sanchez, appointed by President Biden. DOJ can file a reply Sunday morning.

What DOJ wants

DOJ isn't asking to cancel anyone's vote. Its Friday motion, signed by Attorney General Todd Blanche and First Assistant U.S. Attorney Bill Essayli, asks for an order to "segregate—not to cancel" the ballots of people federal agencies flagged, and to verify their citizenship before those ballots are counted (DOJ motion).

"Every minute of processing that occurs without segregating the ballots of suspected non-eligible voters causes untraceable disenfranchisement and dilution of the votes of United States citizens," the motion says. "Once an unlawful vote is processed, it cannot be undone."

The department says California "apparently intends to tabulate vote-by-mail ballots received by noncitizens who the United States has charged with having already violated federal election and immigration laws." That's a reference to the 28 green card holders charged Oct. 19, all of whom DOJ says appear on the same list. Those defendants are presumed innocent unless proven guilty.

DOJ also points out that setting ballots aside is nothing new for election offices. "Segregating ballots is a targeted and narrow remedy, and is something Defendants already do with provisional ballots," the motion says, calling the burden "de minimis." It notes that California's own rules already spell out how to set aside challenged ballots.

California's case: too late, and the list is bad

Attorney General Rob Bonta's office argues the federal courts shouldn't change election rules once voting has started, leaning on the Supreme Court's Purcell rule against last-minute changes. "Mail ballots have been cast and processed in California since October 5, and Election Day is just one week from Tuesday," the state wrote (state filing).

The state says there is no appealable order at all, since the trial judge, David O. Carter, hasn't ruled yet. Los Angeles County filed a separate motion to throw out the appeal for the same reason. Both filings say Carter has set a hearing for Tuesday, Oct. 27.

California also attacks the list. It says DHS started from what "appeared to be the California voter roster" from August 2025, ran it through an unnamed third-party data platform and matched names to immigration records. The county says only 7,035 of the records carry Los Angeles addresses, and that a sample of about 200 found more than a quarter listed a U.S. birthplace. It says DOJ itself concedes about 189 records have data problems.

The state also cites a Guardian report that a federal list of 15,903 suspected noncitizen voters in Nevada was later cut to 185. That claim is California's; DOJ hasn't addressed Nevada in this case.

And the county argues that ordering it to set ballots aside now could swamp its system. It says it has never had a federal request for "temporary ballot segregation" and has no way to do it.

The question the panel has to answer

Here's the tension. California says it already bars noncitizens from voting because registrants swear they are citizens under penalty of perjury. But as we reported last week, the county told the trial court under oath that its registrar is "not equipped or authorized to verify voter citizenship," and California doesn't use the federal SAVE citizenship-check system.

So the state says it can't verify citizenship, can't trace a ballot once it's opened, and shouldn't be made to hold any aside while someone else checks. Federal law already makes it a crime for a noncitizen to vote in a federal election (18 U.S.C. § 611). DOJ's point is simple: if nobody checks before the count, that law can't be enforced for these ballots at all.

If the panel sides with DOJ, it could order the ballots held before Carter's Tuesday hearing. Whoever loses can go to the Supreme Court. With roughly 9 days until Election Day, every day of delay means more ballots opened in Los Angeles.

Background on how the case reached the appeals court is here.