Service Employees International Union v. DOJ - United States Department of Justice
CourtCourt of Appeals for the Ninth Circuit
Date FiledNovember 3, 2026
Docket26-7303
StatusPublished
📰 News Coverage: Read the LAWS.com news report on this case
Full Opinion
FOR PUBLICATION F | L E D
UNITED STATES COURT OF APPEALS NOV 3 2026
MOLLY C. DWYER, CLERK
SERVICE EMPLOYEES No. 26-7303
INTERNATIONAL UNION, AFL-CIO;
AMERICAN FEDERATION OF STATE,
COUNTY & MUNICIPAL EMPLOYEES,
AFL-CIO; LEAGUE OF UNITED LATIN
AMERICAN CITIZENS; NATIONAL
ASSOCIATION FOR THE
ADVANCEMENT OF COLORED
PEOPLE,
Plaintiffs - Appellees,
V.
DOJ - UNITED STATES DEPARTMENT
OF JUSTICE; TODD BLANCHE, Attorney
General, in his official capacity as Attorney
General; UNITED STATES
DEPARTMENT OF HOMELAND
SECURITY; MARKWAYNE MULLIN, in
his official capacity as Secretary of
Homeland Security,
Defendants - Appellants.
D.C. No.
3:26-cv-12800-TLT
Northern District of California,
San Francisco
ORDER
Before: MURGUIA, Chief Judge, and GOULD, BEA, OWENS, BENNETT,
MILLER, LEE, VANDYKE, H.A. THOMAS, DESAI, and TUNG, Circuit Judges.
A majority of the en banc court has voted to reinstate the three-judge panel’s
order filed on November 2, 2026. Pending further order of the court, the three-
judge panel order filed on November 2, 2026, and previously vacated, is reinstated.
A copy of the three-judge panel order, a concurrence by Judge Miller, and dissents
by Chief Judge Murguia and Judge Desai, are attached.
2 26-7303
FOR PUBLICATION F | L E D
UNITED STATES COURT OF APPEALS NOV 2 2026
MOLLY C. DWYER, CLERK
SERVICE EMPLOYEES No. 26-7303
INTERNATIONAL UNION, AFL-CIO;
AMERICAN FEDERATION OF STATE,
COUNTY & MUNICIPAL EMPLOYEES,
AFL-CIO; LEAGUE OF UNITED LATIN
AMERICAN CITIZENS; NATIONAL
ASSOCIATION FOR THE
ADVANCEMENT OF COLORED
PEOPLE,
Plaintiffs - Appellees,
V.
DOJ - UNITED STATES DEPARTMENT
OF JUSTICE; TODD BLANCHE, Attorney
General, in his official capacity as Attorney
General; UNITED STATES
DEPARTMENT OF HOMELAND
SECURITY; MARKWAYNE MULLIN, in
his official capacity as Secretary of
Homeland Security,
Defendants - Appellants.
D.C. No.
3:26-cv-12800-TLT
Northern District of California,
San Francisco
ORDER
Before: Mary H. Murguia, Chief Judge, and Consuelo M. Callahan and Carlos T.
Bea, Circuit Judges.
BEA, Circuit Judge:
Dissent by Chief Judge MURGUIA
Pursuant to Circuit Rule 27-3, Defendants-Appellants (“the Government”) has
moved for an immediate administrative stay and a stay pending appeal of the district
court’s grant of a temporary restraining order in favor of Plaintiffs-Appellees. We
have jurisdiction over this case under 28 U.S.C. § 1292(a)(1). The Government’s
motion is GRANTED.‘
I.
On October 29, 2026, Plaintiffs—two labor unions, and two political-interest
groups—sued Defendants—the United States Department of Justice (“DOJ”), the
Department of Homeland Security (“DHS”), the Attorney General, and the Secretary
of Homeland Security (collectively, “the Government’). D. Ct. Dkt. 26 (“Order”)
at 1. Plaintiffs alleged, in relevant part, that Defendants violated the Voting Rights
Act (“VRA”) and the United States Constitution’s Elections Clause when federal
officers sent and delivered letters to California and Washington that requested that
state and county election officials “sequester” the ballots of certain voters the
Government believed to be aliens, Order at 3; D. Ct. Dkt. 19-7 at 127-28. The
letters also stated that “[a]n alien voting in a federal election is a federal crime—and
knowingly facilitating such conduct is equally unlawful.” D. Ct. Dkt. 29-1 at 9.
Infra App’x.
Plaintiffs filed an ex parte motion for a temporary restraining order (“TRO”) to
enjoin the Government from making any further requests for ballot sequestration or
“threats” of prosecution. D. Ct. Dkt. 17.
The district court granted the motion on October 30, 2026. By its terms, the TRO
will expire on November 16, 2026, seventeen days after its entry.* Order at 7. It
bars the Government from making further ballot-sequestration requests and “threats”
of prosecution. Id. at 6-7. It also requires the Government to inform any state,
county, or local government “to which any Defendant sent a letter regarding the
processing and counting of ballots in the 2026 election .. . that the demands and
threats of prosecution . . . reflected in that letter have been enjoined,” and requires
the DOJ to “inform the Court of any pending search warrant applications, grand jury
* Plaintiffs-Appellees’ motion to file an oversize brief and amicus curiae Justice
Connection’s motion to file an amicus brief are likewise GRANTED.
? We note that the district court attempted to modify the TRO to last only fourteen
days during a hearing on November 2, 2026. However, after the Government’s
appeal, the district court lacked the jurisdiction to do so. L.g., Davis v. United States,
667 F.2d 822, 824 (9th Cir. 1982) (“The filing of a notice of appeal generally divests
the district court of jurisdiction over the matters appealed.”) Therefore, we review
the terms of the TRO as they existed at the time of the Government’s appeal.
2 26-7303
subpoenas . . . pertaining to any list of individuals alleged by Defendants to be
ineligible to vote.” Order at 7.
The district court entered the TRO ex parte. As it was not a hearing upon notice, the
Government did not appear to oppose Plaintiffs’ motion in the district court.
The Government filed a notice of appeal and, on November 1, 2026, filed the instant
motion.
Il.
We review the Government’s motion for a stay pending appeal under four factors:
“(1) whether the stay applicant has made a strong showing that [it] is likely to
succeed on the merits; (2) whether the applicant will be irreparably injured absent a
stay; (3) whether issuance of the stay will substantially injure the other parties
interested in the proceeding; and (4) where the public interest lies.” Nken v. Holder,
556 US. 418, 426 (2009) (citation omitted). A stay “is not a matter of right, even if
irreparable injury might otherwise result.” /d. at 433 (citation omitted). It is “an
exercise of judicial discretion,” and “[t]he party requesting a stay bears the burden
of showing that the circumstances justify an exercise of that discretion.” /d. at 433-
34,
The first two factors “are the most critical.” Jd. at 434. On the first, “[i]t 1s not
enough that the chance of success on the merits be ‘better than negligible.’” /d.
(citation omitted). On the second, “simply showing some ‘possibility of irreparable
injury’” does not suffice. /d. at 434-35 (citation omitted); see Doe #1 v. Trump, 957
F.3d 1050, 1058 (9th Cir. 2020); Leiva-Perez v. Holder, 640 F.3d 962, 968 (9th Cir.
2011) (per curiam). Once an applicant satisfies the first two factors, we assess the
harm to the opposing party and weigh the public interest. Nken, 556 U.S. at 435.
Those factors merge when the government is a party. See id.; Drakes Bay Oyster
Co. v. Jewell, 747 F.3d 1073, 1092 (9th Cir. 2014).
In evaluating the Government’s likelihood of success, we “review an order regarding
preliminary injunctive relief for abuse of discretion, but review any underlying
issues of law de novo.” Norbert v. City & Cnty. of San Francisco, 10 F.4th 918, 927
(9th Cir. 2021) (citation omitted).
Il.
The Government has established a likelihood of success on the merits.
3 26-7303
A.
First, we clarify that the district court’s order, though styled as a TRO, is reviewable
as a preliminary injunction. Whether a court of appeals has jurisdiction to review
an order styled in this manner depends on the “practical effect” of the order, not the
order’s title. Abbott v. Perez, 585 U.S. 579, 594 (2018) (“We have previously made
clear that where an order has the ‘practical effect’ of granting or denying an
injunction, it should be treated as such for purposes of appellate jurisdiction);
Sampson vy. Murray, 415 U.S. 61, 86 n.58, 88 (1974) (construing a TRO as a
preliminary injunction based on, in relevant part, “the possibility of drastic
consequences which cannot later be corrected. . . . To deny review of an order that
has all the potential danger of a preliminary injunction in terms of duration, because
it 1s issued without a preliminary adjudication of the basic rights involved, would
completely defeat the purpose [of appellate review of preliminary injunctions].”)
A TRO has the effect of a preliminary injunction (and is therefore reviewable by the
court of appeals) when it lasts longer than the default TRO period of fourteen days,
id. at 1043-44, when it requires mandatory action, Adams v. Vance, 570 F.2d 950,
953 (D.C. Cir. 1978), or when, absent review, the appellant “would be effectively
foreclosed from pursuing further interlocutory relief,’ Newsom vy. Trump, 141 F.4th
1032, 1044 (9th Cir. 2025) (per curiam) (quoting Env ’t Def. Fund, Inc. v. Andrus,
625 F.2d 861, 862 (9th Cir. 1980)).
The TRO here has all three features. It lasts an initial period of seventeen days, it
requires mandatory action by the Government (notifying every recipient of the
letters and disclosing pending subpoenas and warrant applications), and it bars the
Government from demanding ballot sequestration until and beyond Election Day,
which renders later interlocutory relief meaningless for the Government’s purposes.
Therefore, we have jurisdiction to review it.
B.
Next, we review the substance of the district court’s order. The district court’s order
is based on its conclusion that Plaintiffs had established that the Government’s
conduct likely violated Section 11(b) of the VRA and the Elections Clause.
The district court is likely wrong on both counts.
Section 11(b) of the VRA, 52 U.S.C. § 10307(b), provides:
4 26-7303
No person, whether acting under color of law or otherwise, shall
intimidate, threaten, or coerce, or attempt to intimidate, threaten, or
coerce any person for voting or attempting to vote, or intimidate,
threaten, or coerce, or attempt to intimidate, threaten, or coerce any
person for urging or aiding any person to vote or attempt to vote, or
intimidate, threaten, or coerce any person for exercising any powers or
duties under section 10302(a), 10305, 10306, or 10308(e) of this title
or section 1973d or 1973¢ of title 42.
Plaintiffs’ VRA claim faces an immediate problem: Section 11(b) does not contain
an express private cause of action. See 52 U.S.C. § 10307(b). Instead, the VRA’s
text vests enforcement authority in the Attorney General. /d § 10308(d)
(“Whenever any person has engaged or there are reasonable grounds to believe that
any person is about to engage in any act or practice prohibited by section . . . 10307
..., the Attorney General may institute for the United States, or in the name of the
United States, an action for preventive relief... .”). “The express provision of one
method of enforcing a substantive rule suggests that Congress intended to preclude
others.” Alexander v. Sandoval, 532 U.S. 275, 290 (2001).
The more fundamental problem is that Plaintiffs’ claim would require us to
recognize an implied private cause of action against the Executive. Cf Ziglar v.
Abbasi, 582 U.S. 120, 133 (2017) (“it is a significant step under separation-of-
powers principles for a court to determine that it has the authority, under the judicial
power, to create and enforce a cause of action for damages against federal officials
in order to remedy a constitutional violation.”). The VRA’s text, which prohibits
conduct by “person[s],” counsels against such a reading, as courts apply a
“longstanding interpretive presumption that ‘person’ does not include the
sovereign,” Return Mail, 587 U.S. at 626-27, and require “‘an express statement by
Congress” before subjecting the Executive to a generally applicable statute.
Franklin v. Massachusetts, 505 U.S. 788, 800-01 (1992).
This separation-of-powers concern has particular weight in this case. Consider the
conduct at issue here: the Government delivered letters to state and local officials
that requested that the states implement the Executive’s preferred policy, warned
those states of the strictures of federal law, and instigated investigations into
suspected violations of that law. These are core Executive functions. Congress
cannot be lightly presumed to have imposed new liability for that conduct. See
Trump v. United States, 603 U.S. 593, 609 (2024) (“Congress cannot act on, and
courts cannot examine, the President’s actions on subjects within his ‘conclusive and
5 26-7303
preclusive’ constitutional authority.”); id at 620 (“the Executive Branch has
‘exclusive authority and absolute discretion’ to decide which crimes to investigate
and prosecute, including with respect to allegations of election crime,” and
“Jijnvestigative and prosecutorial decisionmaking is “the special province of the
Executive Branch.’”); id. at 627 (explaining that the Take Care duty “plainly
encompasses enforcement of federal election laws,” and the Executive “may speak
on and discuss such matters with state officials . . . to encourage them to act in a
manner that promotes the President’s view of the public good.”); cf Nat’/ Rifle Ass'n
of Am. v. Vullo, 602 U.S. 175, 188 (2024) (“A government official can share her
views freely and criticize particular beliefs, and she can do so forcefully in the hopes
of persuading others to follow her lead.”).
We therefore decline Plaintiffs’ invitation to read the VRA as rendering the
Executive’s exercise of those functions as unlawfully intimidating, threatening, or
coercive.
The Government is also likely to prevail on Plaintiffs’ Elections Clause claim. The
Elections Clause assigns to the states the authority “to prescribe the manner by which
congressional elections are conducted.” United States v. California, _F.4th__,
2026 WL 3268272, at *3 (9th Cir. Oct. 30, 2026). In this case, the Government
requested that the targeted states sequester certain ballots. They refused, and that
refusal was ratified by this Court, see generally id., and the Supreme Court declined
to grant emergency relief, United States v. California, 610 U.S. _ (Nov. 2, 2026).
The states’ constitutional authority to regulate their elections is therefore unaffected.
See Printz v. United States, 521 U.S. 898, 935 (1997) (holding that the federal
government may request, but not compel, the states to enact or enforce a federal
program).
Plaintiffs treat California as dispositive on this point. The present case, however,
poses a different question from that posed to the California panel: there, the panel
decided whether a state must adopt the ballot-sequestration process requested by the
Government here. California, _ F.4th sj 2026 WL 3268272, at *1. Here, we
consider only whether the Government can make such a request in the first place.
And as we explained above, we think that the Government has established that it
likely can. We find these requests to be core Executive functions that did not
actually disturb the states’ regulation of their own elections.
C.
6 26-7303
The remainder of the factors do not counsel against a stay. Absent a stay, the
Government will be irreparably injured. Noem v. Vasquez Perdomo, 146 S. Ct. 1, 4
(2025) (mem.) (Kavanaugh, J., concurring in the grant of application for stay) (“As
the Court has indicated, any time that the Government is enjoined by a court from
effectuating statutes enacted by representatives of its people, it suffers a form of
irreparable injury.” (cleaned up) (quoting 7rump v. CASA, Inc., 606 U.S. 831, 835
(2025)).8
At most, Plaintiffs fear a possibility of a future prosecution. If such a prosecution is
ever brought, the prosecution itself supplies the means by which any defect,
vindictiveness included, can be raised and remedied. See Sampson, 415 U.S. at 90
(citation omitted) (“The possibility that adequate compensatory or other corrective
relief will be available at a later date, in the ordinary course of litigation, weighs
heavily against a claim of irreparable harm.”). The Government’s injury—being
barred from requesting that the states segregate ballots from suspected non-
citizens—cannot be undone after the fact.
IV.
For these reasons, we GRANT the Government’s motion for stay.
’ This case is distinguishable from California Nurses Ass’n v. Mullin, No. 26-7139,
—_ F4th _, 2026 WL 3268397 (9th Cir. Oct. 30, 2026) (per curiam). There, we
held that the Government “cannot suffer harm from an injunction that merely ends
an unlawful practice.” Cal. Nurses, 2026 WL 3268397, at *6 (quoting Rodriguez v.
Robbins, 715 F.3d 1127, 1145 (9th Cir. 2013)). As we explained above, the conduct
by the Government here was likely not unlawful.
7 26-7303
APPENDIX
Case 3:26-cv-12800-TLT Document19-7 Filed 10/30/26 Page 127 of 128
PagelD #: 745
U.S. Department of Justice
950 Pennsylvania Ave, NW (202) 514-2000
Washington, DC 20530
October 13, 2026
Dean C. Logan
Los Angeles County Registrar-Recorder / County Clerk
12400 Imperial Highway
Norwalk, CA 90650
Via hand delivery
Re: Noncitizen Voting in the 2026 Federal Election
Dear Mr. Logan:
As you're aware, federal law prohibits noncitizens from voting in federal elec-
tions. See 18 U.S.C. § 611. The Supreme Court has also recognized that States “may
not induce, encourage or promote private persons to accomplish what it is constitu-
tionally forbidden to accomplish.” Norwood v. Harrison, 413 U.S. 455, 465 (1973)
(citation omitted). I write to seek your help to protect the integrity of the ongoing
federal election.
On July 16, Secretary Mullin made the California Secretary of State aware
that there are likely numerous noncitizens registered to vote in the federal election
in California. He then asked for her cooperation to ensure the accuracy of these find-
ings and to prevent noncitizen votes from diluting citizen votes. The Secretary’s re-
sponse the following week did not refute that noncitizens are registered to vote in
California. Nor did it contest that noncitizens receive ballots through California’s
vote-by-mail regime, which automatically sends voting materials to “every registered
voter.” 2021 Cal. Stat. ch. 312 (codified at Cal. Elec. Code § 3000.5). Instead, the
Secretary of State asked for more information. I am now providing you, along with
the Secretary of State, additional details.
Accompanying this letter is a password-protected thumb drive with a list of
names of people the Federal Government believes are likely noncitizens who were
sent a vote-by-mail ballot from California to participate in the November 2026 fed-
eral election.
We request that you review the list within 48 hours to determine whether any
citizens are listed. For individuals whom you cannot independently confirm citizen-
ship status, we request that you immediately instruct the appropriate elections offi-
cial to segregate—not cancel—those individuals’ vote-by-mail ballots until their cit-
izenship status can be determined. If individuals on the list have not yet been sent
GS :¢ Wd €4 190 9202
Case 3:26-cv-12800-TLT Document19-7 Filed 10/30/26 Page 128 of 128
PagelD #: 746
a vote-by-mail ballot, take all immediate and reasonable steps to not provide a ballot
to those individuals until we confirm their citizenship status. If a ballot for any in-
dividual on the list has been returned, instruct the appropriate elections official to
not verify the signature and/or tabulate the ballot until citizenship can be deter-
mined. This process will protect American citizens’ votes while preventing nonciti-
zens from participating in the federal election in violation of federal law.
The United States hopes that you share our commitment to ensure that only
American citizens participate in our federal elections. Allowing noncitizens to vote
cancels citizen votes. States are responsible for voter registration, and the Federal
Government is responsible for maintaining immigration records to enable verifica-
tion of citizenship. Working together, we can more effectively protect against voter
dilution and promote election integrity.
Please ensure that the process described above to prevent noncitizens from
voting in the federal election is implemented by contacting election@hq.dhs.gov by
October 15 at noon EST. If you cannot implement this process by then, given the
ongoing federal election, the United States will have no choice but to seek emergency
relief.
We look forward to our collaboration as we work together to ensure free, fair
and accurate elections.
R\Tre cCotter \
Acting Deputy Attorney General
United States Department of Justice
Bilal A. Essayli
First Assistant U.S. Attorney
Central District of California
Case 3:26-cv-12800-TLT Document19-8 Filed 10/30/26 Page 39 of 112
PagelD #: 785
U. S. Department of Justice
United States Attorney
Eastern District of Washington
Thomas S. Foley U. §. Courthouse, Suite 340
P.O. Box 1494 (309) 353-2767
Spokane, Washington 99210-1494 Fax (509) 835-6397
October 26, 2026
Via Email
The Honorable Steve Hobbs
Secretary of State
PO Box 40220 Olympia, WA 98504-0220
steve. hobbsid)sos.wa.gov;
secretaryofstate(@sos.wa.gov
Re: —- Noncitizen Voting in the 2026 Federal Election
Dear Secretary Hobbs,
As you're aware, federal law prohibits noncitizens from voting in federal elections. See 18
U.S.C. § 611. The Supreme Court has also recognized that States “may not induce, encourage or
promote private persons to accomplish what it is constitutionally forbidden to accomplish.”
Norwood v. Harrison, 413 U.S. 455, 465 (1973) (citation omitted). We’re aware of the current
litigation and correspondence surrounding Assistant Attorney General Harmeet Dhillon’s request
for the Washington voter roles — our request here, is separate and apart from that inquiry and
litigation, as we seek your assistance to protect the integrity of the ongoing federal election.
Washington law requires the automatic mailing of voting materials to “each active registered
voter of the state.” Revised Code of Washington §29A.40.010. By law, ballots are to be mailed
to “each voter at least eighteen days before each primary or election,” and ballots for the 2026
General Election were required to be sent to voters no later than October 15, 2026. Revised Code
of Washington §29A.40.070(1). Accordingly, any registered voter in the State of Washington,
including noncitizens that receive ballots through Washington’s vote-by-mail regime, was
required to be sent a ballot no less than seven (7) days ago.
The United States is concerned with the number of noncitizen voters, both enrolled and actively
voting in the State of Washington, as allowing noncitizens to vote cancels citizen votes. To
combat voting by noncitizens, in violation of 18 U.S.C. § 611, the Department of Homeland
Security (DHS) provided our offices a list of names of persons who are noncitizens, who, with a
high level of confidence, have voted in elections as recently as the August 2026 Primary
elections. Some of these individuals have voted in Washington for over a decade and have voted
more than two dozen times. To be clear: through the efforts of our federal law enforcement
partners, the individuals identified are or were noncitizens (i.e., they may have subsequently
naturalized). Our federal partners further identified that these individuals have, with a high level
of confidence, voted. It is the United States’ belief that each of these individuals was sent a vote-
by-mail ballot from the State of Washington to participate in the November 2026 federal
election. The list of the identified individuals is attached to this letter and is comprised of over
400 individuals and over 1,500 total votes.
Case 3:26-cv-12800-TLT Document19-8 Filed 10/30/26 Page 40 of 112
PagelD #: 786
October 26, 2026
Page 2
We advise that we anticipate imminently receiving a second list of individuals believed to be
noncitizens who are registered to vote from DHS, which we will transmit ahead of the November
2, 2026, General Election with the request that you follow the protocol listed below.
To help protect the integrity of the 2026 Election our request and expectations are simple:
1. You, or your office, review the list within 24 hours of receipt of this letter to determine
whether United States citizens are listed.
2. Ifa ballot for any individual on the list has been or subsequently is returned, instruct the
appropriate elections official to not verify the signature and/or tabulate the ballot until
citizenship can be determined.
We believe the requested actions will allow your office to determine whether noncitizens are
voting in Washington’s elections in violation of State and Federal law. As you noted in your July
7, 2026, letter to William Mohrman, Senior Counsel with the Department of Justice’s Civil
Rights Division, RCW 29A.04.205 provides the State’s obligation and commitment “to protect
the integrity of the electoral process.” You further invited the Department of Justice to provide
“meaningful assistance” to protect election integrity — that is our goal here. Through these
efforts, specific individuals were identified, who, with high confidence, should not be registered
to vote under Washington law, RCW 29A.08.370. Our request is simple; we ask that your office
rectify this issue immediately. We further recognize the obligation county auditors and
government agency employees providing voter registration services are under to properly carry
out their duties in connection with voter registration pursuant to RCW 29A.84.110. While our
offices do not enforce State law, we do make criminal referrals to our state counterparts:
nonetheless, we do expect a prompt response from your office by enacting the approach above
and with any further actions you deem appropriate to comply with the State or Federal laws
cited.
Please ensure that the process described above to prevent noncitizens from voting in the federal
election is implemented by contacting election@hq.dhs.gov and copying me at:
pete.serrano wusdoj.zoyv by October 28 at noon PST. If you cannot implement this process by
then, given the ongoing federal election, the United States will have no choice but to seek
emergency relief.
The United States hopes that you share our commitment to ensure that only American citizens
participate in our federal elections. Your assistance in this process will protect American
citizens’ votes while preventing noncitizens from violating federal law by participating in the
federal election. We look forward to our collaboration as we work together to ensure free, fair
and accurate elections.
Sincerely,
‘ - - Pete Serrano
Acting United States Attorney First Assistant United States Attorney
Case 3:26-cv-12800-TLT Document19-8 Filed 10/30/26 Page 41 of 112
PagelD #: 787
October 26, 2026
Page 3
ec: Stuart Holmes
Director of Elections
416 Sid Snyder Ave SW
Olympia, WA 98501
stuart.holmes‘@sos.wa.gov
Case 3:26-cv-12800-TLT Document19-8 Filed 10/30/26 Page3of112 PagelD
#: 749
U.S. Department of Justice
950 Pennsylvania Ave, NW
(202) 514-2000
Washington, DC 20530
October 13, 2026
Shirley N. Weber, Ph.D.
California Secretary of State
1500 11th Street
Sacramento, CA 95814
Via legalsupport@sos.ca.gov
Re: Noncitizen Voting in the 2026 Federal Election
Dear Secretary Weber:
As you are aware, federal law prohibits noncitizens from voting in federal elec-
tions. See 18 U.S.C. § 611. The Supreme Court has also recognized that States “may
not induce, encourage or promote private persons to accomplish what it is constitu-
tionally forbidden to accomplish.” Norwood v. Harrison, 413 U.S. 455, 465 (1978)
(citation omitted). I write to seek your help to protect the integrity of the ongoing
federal election.
On July 16, Secretary Mullin made you aware that there are likely numerous
noncitizens registered to vote in the federal election in California. He then asked for
your cooperation to ensure the accuracy of those findings and to prevent noncitizen
votes from diluting citizen votes. Your response the following week did not refute
that noncitizens are registered to vote in California. Nor did it contest that nonciti-
zens receive ballots through California’s vote-by-mail regime, which automatically
sends voting materials to “every registered voter.” 2021 Cal. Stat. ch. 312 (codified
at Cal. Elec. Code § 3000.5). Instead, you asked for more information. I] am now
providing you additional details.
Earlier today, we provided the Los Angeles County Registrar-Recorder /
County Clerk with a password-protected thumb drive with a list of names of people
the Federal Government believes are likely noncitizens who were sent a vote-by-mail
ballot to participate in the November 2026 federal election. We can also provide you
a digital copy of the list if you send us a secure email address.
We request that you review the list within 48 hours to determine whether any
citizens are listed. For individuals whom you cannot independently confirm citizen-
ship status, we request that you immediately instruct the appropriate elections offi-
cial to segregate—not cancel—those individuals’ vote-by-mail ballots until their citi-
zenship status can be determined. If individuals on the list have not yet been sent a
Case 3:26-cv-12800-TLT Document19-8 Filed 10/30/26 Page4of112 PagelD
#: 750
vote-by-mail ballot, take all immediate and reasonable steps to not provide a ballot
to those individuals until we confirm their citizenship status. If a ballot for any indi-
vidual on the list has been returned, instruct the appropriate elections official to not
verify the signature and/or tabulate the ballot until citizenship can be determined.
This process will protect American citizens’ votes while preventing noncitizens from
participating in the federal election in violation of federal law.
The United States hopes that you share our commitment to ensure that only
American citizens participate in our federal elections. Allowing noncitizens to vote
cancels citizen votes. States are responsible for voter registration, and the Federal
Government is responsible for maintaining immigration records to enable verifica-
tion of citizenship. Working together, we can more effectively protect against voter
dilution and promote election integrity.
Please ensure that the process described above to prevent noncitizens from
voting in the federal election is implemented by contacting election@hq.dhs.gov by
October 15 at noon EST. If you cannot implement this process by then, given the
ongoing federal election, the United States will have no choice but to seek emergency
relief.
We look forward to our collaboration as we work together to ensure free, fair
and accurate elections.
incerely,
ARAL
R\TreXt McQdtter d
Acting Deputy ‘Attorney General
United States Department of Justice
cc:
Bilal A. Essayli
First Assistant U.S. Attorney
Central District of California
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U.S. Department of Justice
950 Pennsylvania Ave, NW (202) 514-2000
Washington, DC 20530
October 16, 2026
Peter M. Bollinger
Assistant County Counsel
Los Angeles County Counsel’s Office
Re: Response to October 15, 2026 Letter
Mr. Bollinger:
The Department of Justice has reviewed your October 15 letter responding to
the federal investigative materials provided to the Los Angeles County
Registrar-Recorder/County Clerk (“County ROV”). I write to address several legally
untenable assertions and to make unmistakably clear the legal implications for
violating 18 U.S.C. § 611.
Your letter asserts that the County ROV is “legally prohibited” from taking
even minimal steps—such as temporarily segregating ballots—after receiving
credible federal evidence identifying tens of thousands of individuals suspected to be
noncitizens. That position is incorrect as a matter of federal law and places officials
in both the California Secretary of State (“SOS”) and County ROV offices at risk of
knowingly facilitating violations of federal criminal statutes.
On October 13, the Department hand delivered a password-protected dataset
identifying more than 20,000 individuals who federal agencies reasonably believe are
likely noncitizens registered to vote in California. This list was developed through a
multilayered, multiagency investigative methodology that relied upon internal
immigration records, data matching, supervisory verification procedures, and more.
The legal consequences for either facilitating or ignoring a federal crime are
significant. Noncitizen voting in a federal election is a federal crime—and knowingly
facilitating such conduct is equally unlawful. Under 18 U.S.C. § 611(a), noncitizens
are prohibited from voting in any election involving federal offices. Under 18 U.S.C.
§ 2, anyone who aids, abets, counsels, induces, or procures the commission of a federal
offense is equally liable. If persons knowingly tabulate ballots cast by individuals
identified by federal agencies as noncitizens, they risk becoming aiders and abettors
to a federal crime. Your assertion that ballots must be counted simply because
California’s registration system relies on self-attestation does not relieve election
officials of their obligations under federal law when they are on actual notice of
noncitizen voting. Nor can state procedures supersede federal criminal statutes.
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Your argument that the County is “not authorized” to pause or segregate
ballots because California relies on attestation-based registration is immaterial.
Section 611 does not excuse unlawful voting simply because a State employs a
permissive registration method. The Department has not asked the County to
adjudicate immigration status; it has asked the County to temporarily set aside
ballots from individuals whose eligibility is credibly in question—a standard
election-administration practice implemented nationwide.
Likewise, your reliance on the National Voter Registration Act’s (“NVRA’s”)
“quiet period” is misplaced. The NVRA’s 90-day limitation applies only to systematic
list-maintenance programs—not to targeted, individualized evidence of unlawful
voting identified by federal law enforcement. The Department has not requested a
purge, cancellation of registrations, or any programmatic action. We requested only
temporary ballot segregation pending citizenship verification. Invoking the NVRA to
justify counting ballots unlawfully cast is both legally incorrect and operationally
irresponsible.
Additionally, the administrative burdens, timing constraints, or the fact that
the investigative list includes individuals residing outside Los Angeles County do not
permit the County to knowingly tabulate ballots that federal law prohibits. Once the
United States provides credible evidence that certain ballots may be unlawful to
count, election officials may not disregard that information because it is inconvenient
to process. Administrative difficulty is not a defense to violating federal law or aiding
or abetting a federal offense.
The Department strongly urges the County and the SOS to reconsider their
positions before taking actions that risk significant federal scrutiny and legal
exposure.
Acting Deputy Attorney General
United States Department of Justice
ce: Shirley N. Weber, Ph.D, California Secretary of State
Dean C. Logan, Los Angeles County Registrar-Recorder/County Clerk
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United States Attorney
Northern District of California
11" Floor, Federal Building (415)436-7200
450 Golden Gate Ave., Box 36055
San Francisco, CA 94102-3495 FAX: (415)436-7234
October 23, 2026
Matt Moreles
Registrar of Voters
Santa Clara County
1555 Berger Drive, Building 2
San Jose, CA 95112
Re: Notice of Suspected Likely Aliens on the Santa Clara County Voter Roll
Dear Mr. Moreles:
As you’re aware, federal law prohibits noncitizens from voting in federal elections. See
18 U.S.C. § 611. It is also unlawful to deprive the residents of California of a fair and impartially
conducted federal election process by casting or tabulating ballots that are known by the person
to be materially false, fictitious, or fraudulent under the laws of California. See 52 U.S.C.
20511(2)(B). And it is unlawful for those not entitled to vote in an election to fraudulently vote
or attempt to vote. See Cal. Elec. Code § 18560(a). The Supreme Court has also recognized that
States “may not induce, encourage or promote private persons to accomplish what it is
constitutionally forbidden to accomplish.” Norwood y. Harrison, 413 U.S. 455, 465 (1973)
(citation omitted). I write to seek your help to protect the integrity of the ongoing federal
election.
On July 16, the Secretary of the Department of Homeland Security (DHS) made the
California Secretary of State aware that there are likely numerous noncitizens registered to vote
in the federal election in California. He then asked for her cooperation to ensure the accuracy of
these findings and to prevent noncitizen votes from diluting citizen votes. The Secretary’s
response the following week did not refute that noncitizens are registered to vote in California.
Nor did it contest that noncitizens receive ballots through California’s vote-by-mail regime,
which automatically sends voting materials to “every registered voter.” 2021 Cal. Stat. ch. 312
(codified at Cal. Elec. Code § 3000.5). Instead, the Secretary of State asked for more
information. The Department of Justice provided those details to the Secretary on October 13,
which included a list of more than 20,000 names with accompanying personal identifying
information for suspected aliens who are registered to vote in California. I am now providing you
with a subset of that list specific to Santa Clara County that contains 902 likely aliens. Earlier
this week, the Department charged 28 aliens for unlawful voting and registration offenses, each
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of whom was on the list provided to the California Secretary of State. !
Within 48 hours, we ask that you commit to working with DOJ and DHS to identify who
on the accompanying list is a citizen and who is not. That means sending us the nonpublic
information associated with each suspected alien’s registration, which includes everything in
your possession from the following: a social security number, a copy of a state ID or driver’s
license or the information that appears on it, a copy of the voter registration application
supporting the registration, and a copy or list of documents that were presented by the registrant
at the time the person registered to vote or obtained their driver’s license if registered as part of
motor voter. By comparing the accompanying list with the requested information you provide,
together we can quickly assess these specific suspected aliens registered to vote in your County.
For individuals whom citizenship status cannot be confirmed, we request that you
immediately instruct the appropriate elections official to segregate—not cancel—those
individuals’ vote-by-mail ballots until their citizenship status can be determined. If a ballot for
any individual on the list has been returned, instruct the appropriate elections official to not
process the ballot until citizenship can be determined. This process will protect American
citizens’ votes while preventing noncitizens from participating in the federal election in violation
of federal law.
A substantially similar letter to this one was sent to the Los Angeles County Registrar-
Recorder/County Clerk. Instead of committing to working with the Department to prevent aliens
from voting in the upcoming federal election, it sent a letter declining to review the evidence
presented to it and resisting our civil lawsuit to compel segregation of those ballots until
citizenship could be verified.
I write to make unmistakably clear the legal implications of continuing to send vote-by-
mail ballots to those people on the list or tabulating ballots cast by them until citizenship can be
verified.
This list was developed through a multilayered, multiagency investi