United States v. State of California

FOR PUBLICATION FILED UNITED STATES COURT OF APPEALS OCT 26 2026 FOR THE NINTH CIRCUIT MOLLY C. DWYER, CLERK U.S. COURT OF APPEALS UNITED STATES OF AMERICA, No. 26-7070 D.C. No. Plaintiff - Appellant, 2:26-cv-12025-DOC-ADS Central District of California, v. Los Angeles STATE OF CALIFORNIA; SHIRLEY ORDER WEBER, PH.D., in her official capacity as the California Secretary of State; DEAN LOGAN, in his official capacity as the County of Los Angeles Registrar- Recorder/County Clerk, Defendants - Appellees, PER CURIAM: Concurrence by Judge BENNETT; Concurrence by Judge SANCHEZ; Dissent by Judge BUMATAY In this appeal, Plaintiff, the United States, asks us to issue a mandatory injunction and order Defendants, the State of California and the County of Los Angeles (the “County”)1: “(1) to set aside vote-by-mail ballots from persons identified by the Federal Government likely to be noncitizens and (2) to independently—or in collaboration with the Federal Government—verify their 1 The United States sued Dean C. Logan, in his official capacity as the County of Los Angeles – Registrar-Recorder/County Clerk. 1 citizenship status before tabulating their vote-by-mail ballot.” But the United States failed to allow the district court adequate opportunity to consider its application for a Temporary Restraining Order (“TRO”). For that reason, we lack jurisdiction over this appeal. So we grant the County’s motion to dismiss this appeal and deny as moot the United States’s emergency motion for relief. I. In this case, the United States alleges that Defendants automatically mailed vote-by-mail ballots for the 2026 federal election to all registered voters in California, even after the United States informed Defendants that thousands of individuals “likely” to be noncitizens were on the voter rolls and would receive these ballots. The United States claims Defendants did not make a serious effort to work with the federal government to identify and remove “likely” noncitizens from the rolls and accuses Defendants of tabulating ballots from these individuals without verifying their citizenship. In this way, the United States claims Defendants are knowingly facilitating unlawful noncitizen voting in federal elections, in violation of federal law. The dispute between the parties began months ago, when the U.S. Citizenship and Immigration Services (“USCIS”) and Department of Homeland Security Investigations (“HSI”) obtained California’s voter roll in anticipation of the 2026 November midterm elections. The two agencies then curated a list of individuals 2 they believed with “high-confidence” were noncitizens registered to vote in California. They did so by cross-referencing the voter roster with both internal and third-party data regarding possible noncitizens. In July, the Secretary of Homeland Security contacted Defendants’ representatives and informed them that the United States was in possession of a list—developed by USCIS and HSI over the summer—of thousands of individuals registered to vote in their elections whom the agencies had labeled as “likely” noncitizens. The United States asked Defendants to coordinate with the federal government in confirming the citizenship status of those individuals on the list. Defendants responded with skepticism, seeking a more detailed description of the methodology utilized by DHS to identify these allegedly ineligible voters, among other indicia of veracity. Hearing nothing further from the United States, and consistent with state law—which requires California to send vote-by-mail ballots to all registered voters before the election, see Cal. Elec. Code § 3000.5—Defendants mailed ballots to all registered voters on October 1, 2026. On October 13, 2026, after the ballots were mailed, the United States again contacted Defendants, this time sending them a list of over 20,000 “likely” noncitizens registered to vote in California’s November federal election (the “October List”). The United States asked Defendants to review the list within forty- 3 eight hours, confirm citizenship of the individuals, and, if Defendants were unable to independently confirm citizenship, to set aside ballots received from individuals on the October List until each individual’s citizenship could be verified. When Defendants refused to comply with that demand, the United States filed suit against Defendants on October 15, 2026. Essentially, the United States argued that Defendants were violating the Supremacy Clause, U.S. Const. art. VI, cl. 2, by knowingly facilitating the votes of noncitizens, which frustrated the federal prohibition against noncitizens voting in federal elections, see 18 U.S.C. § 611(a). And it asked the district court to “[i]ssue a preliminary and permanent injunction enjoining California from tabulating in federal elections vote-by-mail ballots received from individuals identified by the Federal Government as likely noncitizens until those individuals’ citizenship status c[ould] be verified.” Four days later, on October 19, 2026, the United States filed an “Ex Parte Application to Exceed Page Limitation,” seeking to file an overlength memorandum in support of a forthcoming application for a TRO. See Ex Parte Application to Exceed Page Limitation, No. 26-cv-12025 (C.D. Cal. Oct. 19, 2026), ECF No. 22.2 The United States attached to that Motion a copy of its application for a TRO, id. at ECF No. 22-1, and a memorandum in support of the motion, id. at ECF No. 22-2. 2 All ECF cites refer to the entries in Case No. 26-cv-12025. 4 In that TRO request, the United States told the district court that it was requesting a ruling on the motion by November 3, 2026: This Court should order California to set aside vote-by-mail ballots from likely noncitizens in the federal election—including any ballots cast by the individuals charged with 18 U.S.C. § 611 crimes this morning—until the voter’s citizenship status can be determined. The United States respectfully requests that this Court grant this relief by November 3, 2026, before the end of voting in the 2026 federal election. See id. at ECF No. 22-2 pp. 3–4 (emphasis in original). Two days later, on October 21, 2026, the case was reassigned to Judge David Carter. The court, on October 21, 2026, granted the United States’s request to file an overlength memorandum in support of its TRO. ECF No. 53. That same day, the United States filed its application for a TRO, which was virtually identical to the earlier version, including as to the request for a ruling by November 3, 2026—see Emergency Ex Parte Application for TRO, ECF No. 62-1 p. 4. Judge Carter then set a hearing on the TRO motion for October 27, 2026, leaving about one week between the hearing date and the date by which the United States had requested a hearing. See In Chambers Order Setting Hearing, ECF No. 64. At around 9:00 PM that night (October 21, 2026), the United States filed what it titled a “Request for Expedited Ruling on TRO.” Request for Expedited Ruling on TRO, ECF No. 67. The United States emphasized that Defendants, in opposing the TRO, admitted that the County had processed more than 331,000 ballots since it 5 began counting them on October 5, 2026.3 Id. at 1. Apparently surprised by this fact, the United States requested that the district court rule on its TRO fifteen hours (three business hours) later—“by noon on October 22, 2026.” See id. at 2. The district court did not rule on the motion by noon the next day, and the United States, later describing the district courts nonaction during this brief period as a “constructive denial” of the motion, appealed to this court on October 22, 2026. Despite the United States’s appeal, Judge Carter continues to consider the United States’s TRO; has reiterated his plans to hold a hearing on Tuesday, October 27, 2026; and has committed to “rul[ing] promptly after hearing from the Parties.” See Order Reiterating Briefing Deadlines, ECF No. 85. On appeal, the United States filed an emergency motion for injunctive relief, requesting that we immediately grant an injunction pending appeal that, as noted, would require Defendants “(1) to set aside vote-by-mail ballots from persons identified by the Federal Government likely to be noncitizens and (2) to independently—or in collaboration with the Federal Government—verify their citizenship status before tabulating their vote-by-mail ballot.” The County soon filed an emergency motion to dismiss this appeal, contending that we lack jurisdiction to 3 In Defendants’ opposition to the TRO, a scrivener’s error suggests that the County “began its VBM ballot processing operations on October 11, 2026.” In fact, as clarified by the preceding sentence and the underlying declaration, the County “began its VBM ballot processing operations on October 5, 2026.” 6 hear it. Both motions are fully briefed, and we held oral argument on October 25, 2026.4 II. We start, as we must, with jurisdiction. See HayDay Farms, Inc. v. FeeDx Holdings, Inc., 55 F.4th 1232, 1238 (9th Cir. 2022) (“It is the duty of federal courts to assure themselves that their jurisdiction is not being exceeded.” (quoting In re Ryther, 799 F.2d 1412, 1414 (9th Cir. 1986))). A. Under 28 U.S.C. § 1292(a)(1), we have jurisdiction over appeals from “[i]nterlocutory orders of the district courts of the United States . . . granting, continuing, modifying, refusing or dissolving injunctions, or refusing to dissolve or modify injunctions, except where a direct review may be had in the Supreme Court.” 28 U.S.C. § 1292(a)(1). Thus, in the normal course, whenever a district court denies a preliminary injunction, that denial is an appealable interlocutory order. Id. But we also have jurisdiction over interlocutory appeals in which “the district court effectively denied the motion” for injunctive relief. Mt. Graham Red Squirrel v. Madigan, 954 F.2d 1441, 1449–50 (9th Cir. 1992). This is because, since “preliminary relief must be granted promptly to be effective, simple inaction may 4 Several entities have moved to intervene in this appeal. Dkt. Nos. 7, 27, 31. Because we dismiss for lack of jurisdiction, we deny as moot their motions to intervene. 7 have the practical effect of refusing an express request for a preliminary injunction.” 16 Charles Alan Wright & Arthur R. Miller, Federal Practice & Procedure § 3924.1 (3d ed. 2008). Nevertheless, because Section 1292(a)(1) creates only a “limited exception to the final-judgment rule,” we are to “narrowly” construe our interlocutory jurisdiction. Carson v. Am. Brands, Inc., 450 U.S. 79, 84 (1981). Recently, in A. A. R. P. v. Trump, 605 U.S. 91, 92 (2025) (per curiam), the Supreme Court considered appellate jurisdiction arising from a so-called “constructive denial” of injunctive relief. There, the President invoked the Alien Enemies Act (“AEA”), 50 U.S.C. § 21, to remove Venezuelan nationals whom it had deemed members of Tren de Aragua. Id. When several detainees were “served notices of AEA removal and told that they would be removed ‘tonight or tomorrow,’” the detainees moved for an emergency TRO preventing their removal and for a ruling or a hearing on the motion by the next day. Id. at 92–93. After the district court delayed ruling on the motion for “14 hours and 28 minutes,” the detainees appealed the “constructive denial” of their emergency motion. Id. at 92–94 (brackets omitted). When the case reached the Supreme Court, the Court held that the district court practically refused an injunction to the detainees, who were “facing an imminent threat of severe, irreparable harm.” Id. at 94. This was in part due to the “district court’s inaction in the face of extreme urgency,” and in part due to the “high risk of ‘serious, perhaps irreparable,’ consequences” faced by the detainees in 8 absence of a ruling. Id. (citations omitted). For instance, the evidence in the record showed that many of the detainees had “already been loaded on to buses, presumably headed to the airport.” Id. at 97. And the government had “represented on the record in federal court that it reserved the right to remove detainees after midnight.” Id. The prospect of irreparable harm was amplified by recognition that, in a prior similar case, the United States had represented that it could not secure the return of a person deported to a prison in El Salvador. Id. at 95. That is, once deported, the Plaintiffs would have been irretrievably and permanently outside the jurisdiction of the United States. Id. For this reason, the Supreme Court repeatedly stressed that it held an interest in “preserv[ing] [its] jurisdiction,” an interest the threatened harm would extinguish. Id. at 95–97. Under these circumstances, the Court concluded that the Circuit Court (and the Supreme Court) had jurisdiction “to issue injunctive relief to prevent irreparable harm” to the detainees. Id. at 97. B. In the emergency motion filed with this appeal, the United States went straight to the merits, and barely addressed our jurisdiction, making a conclusory assertion that because the district court “failed to rule” on its TRO, the court constructively denied it.5 Defendants immediately filed their own emergency motion to dismiss 5 In fact, the word “jurisdiction” does not even appear in the United States’s emergency motion. 9 this appeal for lack of jurisdiction, arguing that the United States manufactured an emergency to prematurely reach our court, even though the district court is set to hear argument on the United States’s motion this Tuesday, on October 27, 2026. In response to that motion, the United States addressed our jurisdiction, arguing that California’s continued counting of ballots constituted an extreme harm that the district court—in the fifteen hours (three business hours) between 8:57 PM on October 21, 2026, to 12:00 PM on October 22, 2026—failed to remedy. The United States requested that we act with exigency, purportedly invoking our jurisdiction pursuant to A.A.R.P. v. Trump, 605 U.S. at 92. Because the United States invoked A. A. R. P. v. Trump, 605 U.S. at 92, we start there. Recall that in A. A. R. P., the Court decided that the district court’s inaction—for “14 hours and 28 minutes”—in the “fac[e] [of] an imminent threat of severe, irreparable harm” amounted to a constructive denial of the requested injunction. Id. at 94. The United States gave the district court here about 15 hours (three business hours)6 to rule on its TRO (from 8:57 PM on October 21, 2026, to 12:00 PM on October 22, 2026). When no ruling came, the United States appealed to this court, citing A. A. R. P. and claiming “an imminent threat of severe, irreparable harm.” See A. A. R. P., 605 U.S. at 94. 6 We note that while in A. A. R. P., the government was acting to deport individuals during non-business hours, the United States has not alleged that Defendants were counting ballots between 9:00 PM and 9:00 AM. 10  But A. A. R. P. does not stand for the proposition that litigants may appeal a request for an injunction whenever the district court fails to rule within fifteen hours of filing. See id. at 94 (“A district court’s inaction . . . may have the effect of refusing an injunction (emphasis added)). Rather, that case dealt with an “imminent threat of severe, irreparable harm”—detainees were in the process of being loaded on buses and taken to the airport to be irretrievably deported beyond the United States’s jurisdiction—and the detainees twice urgently attempted to obtain a TRO during deportation proceedings. Id. at 92–93. As we now explain, the United States has not treated this case with anywhere near the exigency of the detainees in A. A. R. P. and has thus failed to establish that the district court did not act “in the face of extreme urgency.” Id. at 93. This case is meaningfully distinct from A.A.R.P. for several reasons. First, unlike in A.A.R.P., any delay in the availability of judicial relief is, at least in part, the product of the United States’s own decisions. Throughout these proceedings, the district court accommodated the United States’s desired timetable: it took the United States at its word, set a hearing on the TRO a week before the United States’s requested deadline, and notified the parties it would “rule promptly after hearing from the Parties at oral argument . . . .” That the United States had overlooked the fact that counties across California would be working diligently to 11 process ballots for the millions of voters residing within the State does not equal inaction by the district court or circumstances outside the United States’s control. The United States’s theory is that, absent an injunction, “every minute of processing that occurs without segregating the ballots of suspected ineligible voters causes untraceable disenfranchisement and dilution of the votes of United States citizens.” But the United States had the information it needed to seek relief with exigency well before October 21, 2026, when it first requested relief. The United States has taken issue with California’s voter rolls since at least July 16, when it sent a letter to California’s Secretary of State citing its “[p]reliminary” analysis of California’s voter rolls. And neither California’s law permitting the processing of ballots twenty-nine days before an election, nor its law providing for the issuance of mail-in ballots to registered voters, is new. Cal. Elec. Code. §§ 15101(a), 3003. Yet the United States’s complaint, filed on October 15, 2026—ten days after counties could begin counting, and months after it initially contacted California authorities— said nothing about irreparable harm, did not request a deadline for relief, and was not filed contemporaneously with a TRO or a motion for a preliminary injunction. See Complaint for Declaratory and Injunctive Relief, ECF No. 1. Instead, the United States waited four days, until October 19, 2026, to file an “Ex Parte Application to Exceed Page Limitation.” See Ex Parte Application to Exceed Page Limitation, ECF No. 22. For the first time, the United States attached to its page limit motion a 12 request for a TRO, id. at ECF No. 22-1, and its memorandum in support of such injunctive relief, id. at ECF No. 22-2. It took the United States four days to prepare and file a TRO (ECF No. 22-1), and all the while, California was counting votes pursuant to its longstanding state law. See Lydo Enters., Inc. v. City of Las Vegas, 745 F.2d 1211, 1213 (9th Cir. 1984) (“A delay in seeking a preliminary injunction is a factor to be considered in weighing the propriety of relief.”). And then, the United States doubled down on its lack of urgency. More specifically, the United States twice told the district court—first on October 19, 2026 and then again on October 21, 2026, that it was requesting a ruling “by November 3, 2026:” This Court should order California to set aside vote-by-mail ballots from likely noncitizens in the federal election—including any ballots cast by the individuals charged with 18 U.S.C. § 611 crimes this morning—until the voter’s citizenship status can be determined. The United States respectfully requests that this Court grant this relief by November 3, 2026, before the end of voting in the 2026 federal election. See Memorandum in Support of The United States’s Ex Parte Application for Temporary Restraining Order, ECF No. 22-2 p. 4 (emphasis in original); id. at ECF No. 62-1 p. 4 (same). During this time, Defendant Logan, with California’s support, requested an expedited briefing schedule to resolve the matter swiftly, and reported that the United States declined to support the motion because it did not believe there was sufficient exigency to merit it. ECF No. 57 at 7; see generally ECF No. 61. 13 Seeing the United States’s request for relief by November 3, the district court immediately set a hearing on the United States’s TRO for Tuesday, October 27, 2026—one week before the United States’s proposed November 3 deadline— specifically stating on October 23, 2026 that the “Court will rule promptly after hearing from the Parties at oral argument on Tuesday, October 27, 2026.” ECF No. 85. Only after the district court set the hearing in accordance with the United States’s twice-repeated timetable did the United States change tack. At 8:57 PM on October 21, 2026 (the very same day the district judge received this case and set the hearing), the United States filed a “Request for Expedited Ruling on Emergency Application for a TRO,” stressing the urgency of its motion and asking for a ruling by 12:00 PM the next day. After just fifteen hours—most of them in the middle of the night—the United States appealed, telling us that the district court constructively denied its motion by failing to timely rule on it during that very brief time period. Specifically, the United States argued that, although it initially “sought relief by November 3, 2026,” it did not see the alleged acute urgency in this matter until it received Defendants’ opposing brief on October 20, 2026, where it learned the County had processed more than 300,000 vote-by-mail ballots. We note that the very next day, however, the United States filed its application for a TRO and for the second time requested a ruling by November 3, 2026. 14  The United States’s claimed emergency, at least in part, is a self-constructed one. At least part of the delay here is attributable to the United States’s own delay in filing suit, in realizing that existing California state law governs the issuance and processing of ballots, in recognizing that California has millions of registered voters and processes ballots on a schedule aligned with that scale, and in communicating to the court its desired relief. The same cannot be said of A.A.R.P., a case in which the plaintiffs sought relief on a short timeline for circumstances outside their control: notification by the federal government that it sought to deport them that very night or the following morning. A.A.R.P., 605 U.S. at 92–93. “[I]t is a rule of equity that an unreasonable delay in asserting rights is a bar to relief.” Martin v. Gray, 142 U.S. 236, 239 (1891). The A.A.R.P. plaintiffs acted as promptly as they could; the United States, here, has not. Second, A.A.R.P. takes as its template the Carson factors in determining what constitutes a “constructive denial” of a plaintiff’s request for relief. A.A.R.P., 605 U.S. at 94 (citing Carson, 450 U.S. at 84)). Another Carson factor counsels finding jurisdiction when an interlocutory order can be “effectually challenged only by immediate appeal.” Carson, 450 U.S. at 84 (citation modified). In three separate instances, the Supreme Court stressed the relevance of this factor to the facts of A.A.R.P., noting that it wished to “preserve [its] jurisdiction.” A.A.R.P., 605 U.S. at 95, 97. Had the A.A.R.P. plaintiffs been deported, they would have been removed, 15 permanently, from the jurisdiction of the federal judiciary. Id. at 93. As the United States concedes at oral argument, absent appellate court intervention here, district court proceedings will continue, and any party dissatisfied with the outcome below may seek appellate review. There is here no loss of jurisdiction. Third, the A.A.R.P. decision came following another, germane Supreme Court opinion confirming that, even in the context of the AEA, our Constitution “entitles aliens to due process of law in the context of removal proceedings.” Trump v. J.G.G., 604 U.S. 670 (2025) (citation modified) (quoting Reno v. Flores, 507 U.S. 292, 306 (1993)). In A.A.R.P., the Supreme Court called attention to this, commenting that it had already “explained—with all nine Justices agreeing—that ‘AEA detainees must receive notice . . . that they are subject to removal under the Act . . . within a reasonable time and in such a manner as will allow them to actually seek habeas relief’ before removal.” A.A.R.P., 605 U.S. at 95 (quoting J.G.G., 604 U.S. at 673 (2025)). In seeking to deport the A.A.R.P. plaintiffs in the manner in which it proposed, the United States risked flouting the Supreme Court’s clear mandate. Id. at 94–95. There is no analogous risk here. C. The emergency the United States asserts, partly created by its own actions, bears little resemblance to the extraordinary facts of A.A.R.P. v. Trump. The United States’s theory could confer appellate jurisdiction nearly any time a party faced some 16 form of “irreparable harm.” But to quote the D.C. Circuit, “[w]hile a deserving litigant is always harmed if judicial relief is delayed, such harm does not automatically rise to the irreparable level.” I.A.M. Nat’l Pension Fund Benefit Plan A v. Cooper Inds., Inc., 789 F.2d 21, 24–25 (D.C. Cir. 1986). Accordingly, we grant the County’s motion to dismiss this appeal for lack of jurisdiction and deny as moot the United States’s emergency motion for relief. 17  FILED United States v. State of California, No. 26-7070 OCT 26 2026 MOLLY C. DWYER, CLERK BENNETT, Circuit Judge, concurring:1 U.S. COURT OF APPEALS I fully concur with the per curiam order. I write separately, however, in light of the dissent. Even if I were to conclude we had jurisdiction over the appeal, and reach the merits, there are several reasons why I would deny the United States’s emergency motion for injunctive relief pending appeal. I. A. In this case, Plaintiff, the United States of America, alleges that Defendants, the State of California and the Los Angeles County2, automatically mailed vote-by- mail ballots for the 2026 federal election to all registered voters in California, even after Plaintiff informed Defendants that thousands of individuals “likely” to be noncitizens were on the voter rolls and would receive these ballots. Plaintiff claims Defendants made no serious effort to work with the federal government to identify and remove “likely” noncitizens from the rolls, and accuses Defendants of tabulating 1 Due to the time constraints in this emergency appeal, I do not address all merits issues, and focus only on several that I believe are dispositive. 2 Plaintiff sued Dean C. Logan, in his official capacity as the County of Los Angeles Registrar-Recorder/County Clerk. I refer to this defendant as “the County” for simplicity. 1 ballots from these individuals without verifying their citizenship, thereby knowingly facilitating unlawful noncitizen voting in federal elections in violation of federal law. According to Plaintiff, two United States agencies work in conjunction to develop predictive lists of noncitizens who may be registered to vote in federal elections. First, the U.S. Citizenship and Immigration Services (“USCIS”) obtains voter rosters, which some states—like California here—make available for purchase. See Cal. Elec. Code § 2188. USCIS then compares that voter roll information with its own internal immigration records, and uses third-party software to generate high, medium, or low confidence identity matches. Once complete, USCIS then creates a table of individuals who it believes are “high-confidence” matches for noncitizens with no evidence of naturalization. The high-confidence matches are then forwarded to the Department of Homeland Security Investigations (“HSI”), which serves as the primary investigative agency enforcing America’s immigration laws. Working with USCIS, HSI reviews the high-confidence referrals and attempts to further investigate and tailor the list for accuracy. According to Plaintiff, HSI’s review consists of using a “customary analytical platform” to correct “information mismatches” on the high- confidence list. 2  B. Over the summer months of 2026, USCIS and HSI obtained California’s voter roll in anticipation of the 2026 November midterm elections. In accordance with the procedures outlined above, the two agencies then curated a list of “high-confidence” noncitizens who they believed were registered to vote in California. In July, the Secretary of Homeland Security contacted Defendants and informed them that Plaintiff was in possession of a list identifying thousands of individuals who were “likely” noncitizens improperly eligible to vote in their elections. Plaintiff asked Defendants to coordinate with the federal government in confirming the citizenship status of those on the list. Defendants responded with skepticism, seeking a more detailed description of the methodology used by DHS to identify these allegedly ineligible voters, among other indicia of veracity. Hearing nothing further from Plaintiff regarding the list, and consistent with state law—which requires California to send vote-by-mail ballots to all registered voters, see Cal. Elec. Code § 3000.5—Defendants mailed ballots to all registered voters on October 1, 2026. On October 13, 2026, after the ballots were mailed, Plaintiff again contacted Defendants, this time sending them a list of over 20,000 “likely” noncitizens who may vote in California’s November federal election (“October List”). Plaintiff asked Defendants to review the list, confirm citizenship of the individuals, and, if 3 Defendants were unable to independently confirm citizenship, to set aside ballots received from individuals on the October List until each individual’s citizenship could be verified. When Defendants refused to comply with that demand, Plaintiff brought suit against Defendants on October 15, 2026. Essentially, Plaintiff argued that Defendants were violating the Supremacy Clause, U.S. Const. art. VI, cl. 2, because by knowingly facilitating the votes of noncitizens, Defendants were frustrating the federal prohibition against noncitizens voting in federal elections. See 18 U.S.C. § 611(a). And it asked the district court to “[i]ssue a preliminary and permanent injunction enjoining California from tabulating in federal elections vote-by-mail ballots received from individuals identified by the Federal Government as likely noncitizens until those individuals’ citizenship status c[ould] be verified.” Plaintiff sought injunctive relief in the district court, as discussed in the per curiam order. When the district court failed to rule by Plaintiff’s requested deadline,3 Plaintiff treated the court’s nonaction as a constructive denial of the motion and appealed. On appeal, Plaintiff filed an emergency motion for injunctive relief, requesting that we immediately grant an injunction pending appeal that requires Defendants to (1) set aside vote-by-mail ballots from persons identified by the 3 As the per curiam order notes, Plaintiff’s “deadline” materially changed over time. 4 Federal Government likely to be noncitizens and (2) independently—or in collaboration with the Federal Government—verify their citizenship status before tabulating their vote-by-mail ballot. The County soon filed an emergency motion to dismiss this appeal, contending that we lack jurisdiction to hear it. We held oral argument on October 25, 2026. II. To obtain preliminary injunctive relief, a plaintiff “must establish that [it] is likely to succeed on the merits, that [it] is likely to suffer irreparable harm in the absence of preliminary relief, that the balance of equities tips in [its] favor, and that an injunction is in the public interest.” Winter v. Nat. Res. Def. Council, Inc., 555 U.S. 7, 20 (2008). Plaintiff argues that it needs an injunction to maintain the status quo, and that its proposed injunction does no more than maintain the status quo. I disagree. Because Plaintiff urges this court to require Defendants to take “affirmative action”—to segregate California’s ballots that the State would not otherwise segregate and to affirmatively verify certain voters’ citizenship status before tabulating their vote-by-mail ballot—Plaintiff requests a mandatory injunction. See Garcia v. Google, Inc., 786 F.3d 733, 740 (9th Cir. 2015) (en banc). “The standard for issuing a mandatory preliminary injunction is high.” Doe v. Snyder, 28 F.4th 103, 111 (9th Cir. 2022). “In general, mandatory injunctions ‘are not granted unless extreme or very serious damage will result and are not issued in 5 doubtful cases . . . .’” Id. (quoting Marlyn Nutraceuticals, Inc. v. Mucos Pharma GmbH & Co., 571 F.3d 873, 879 (9th Cir. 2009)). The movant “must establish that the law and facts clearly favor [its] position, not simply that [it] is likely to succeed.” Garcia, 786 F.3d at 740. And in deciding to grant equitable relief, the remedy must be workable. North Carolina v. Covington, 581 U.S. 486, 488 (2017) (per curiam) (quotation marks omitted) (quoting New York v. Cathedral Acad., 434 U.S. 125, 129 (1977)). In my view, Plaintiff fails to meet these heightened standards. A. First, I consider Plaintiff’s likelihood of success on the merits of its claim— “the most important” of the Winter factors—and whether the “law and facts clearly favor [its] position, not simply that [it] is likely to succeed.” Garcia, 786 F.3d at 740. Plaintiff asks this court—in an expedited and preliminary posture—to order Defendants to segregate the ballots of alleged noncitizens because, it argues, 18 U.S.C. § 611 preempts California’s declination and preempts California from following the statutory scheme adopted by the California Legislature. Yet Plaintiff has not made the required showing that such extraordinary relief, in the days leading up to an election, is clearly required by law. As an initial matter, there is no dispute that it is unlawful under both federal and California law for noncitizens to vote. Compare 18 U.S.C. § 611, with Cal. Const. art. II, § 2(a) (“A United States citizen 18 years of age and resident in this 6 State may vote.”). Rather, this dispute is about the procedures used to enforce that prohibition, which plainly implicates the Elections Clause of the U.S. Constitution. See Arizona v. Inter Tribal Council of Arizona, Inc., 570 U.S. 1, 8–9 (2013) (“ITCA”). The Elections Clause, U.S. Const. art. I, § 4, cl. 1, reads: The Times, Places and Manner of holding Elections for Senators and Representatives, shall be prescribed in each State by the Legislature thereof; but the Congress may at any time by Law make or alter such Regulations, except as to the Places of chusing Senators. This clause expressly dictates which sovereign has the authority to prescribe the manner by which Congressional elections are conducted. The question therefore is whether Congress has spoken clearly—that is, whether California’s procedures in enforcing the election requirements, such as citizenship or ballot challenges based on citizenship, have been preempted. 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. While Plaintiff argues that the Supremacy Clause requires California to segregate several thousand ballots because failing to do so would at a minimum “induce, encourage or promote” the violation of § 611, this court has recognized that “the Elections Clause operates quite differently from the Supremacy Clause.” Gonzalez v. Arizona, 677 F.3d 383, 391 (9th Cir. 2012) (en banc), aff’d sub nom. Arizona v. Inter Tribal Council of Arizona, Inc., 570 U.S. 1 (2013). “In practice, the [Elections] Clause functions as ‘a default provision; it invests the States with 7 responsibility for the mechanics of congressional elections, but only so far as Congress declines to pre-empt state legislative choices.’” ITCA, 570 U.S. at 9 (quoting Foster v. Love, 522 U.S. 67, 69 (1997)). These state responsibilities on the “times, places, and manner” can include: notices, registration, supervision of voting, protection of voters, prevention of fraud and corrupt practices, counting of votes, duties of inspectors and canvassers, and making and publication of election returns; in short, to enact the numerous requirements as to procedure and safeguards which experience shows are necessary in order to enforce the fundamental right involved. Smiley v. Holm, 285 U.S. 355, 366 (1932) (emphasis added). Congress, however, “may supplement these state regulations or may substitute its own” because “[i]t has a general supervisory power over the whole subject.” Id. at 366–67 (citation modified); see also Gonzalez, 677 F.3d at 391 (“[A] state’s role in the creation and implementation of federal election procedures under the Elections Clause is to administer the elections through its own procedures until Congress deems otherwise; if and when Congress does so, the states are obligated to conform to and carry out whatever procedures Congress requires.”). But federal law only displaces state election law in “so far as it is exercised, and no farther.” ITCA, 570 U.S. at 9 (quoting Ex parte Siebold, 100 U.S. 371, 392 (1880), abrogated on other grounds by Glasgow v. Moyer, 225 U.S. 420 (1912)). Further, the Elections Clause confers broad authority only on Congress and the States, not the Executive. Indeed, to prevent the centralization of