An Epic Opinion From Judge Carter
Judge David Carter in California issued his opinion in the California case where the Justice Department is insisting California set aside ballots cast by voters it thinks might not be citizens. It’s one for the history books. It is not flashy. There is no poetry or fancy wordplay. It’s the plainspoken eloquence of the opinion that grabbed me, as the Judge laid out the importance of the right to vote and this administration’s attempt to interfere with it in language as suitable for citizens as it is for lawyers.
“This case is about the right of every American citizen to vote in a free and fair election. Never before in American history has the federal government, on the eve of an election, sought to coerce a state and local government to abandon their own Constitutional elections procedures and bend to the will of the Executive Branch. In bringing this lawsuit, the Executive would have this Court believe that it reigns as a sole sovereign. But California and its people are sovereign, too.”
The bottom line is that the Trump administration cannot force the state of California to cast aside ballots just because of speculation that voters, who complied with state law for registering, aren’t citizens. At least, that’s the rule for now—the government has already filed an emergency appeal, asking for an injunction to prevent California from counting the ballots. In the course of the case’s first trip to the Ninth Circuit (the issue was the government’s premature attempt to take an appeal, which we discussed here), two judges on the panel, which will hear this new appeal as well, wrote concurrences invoking the Purcell principle for the proposition that it’s too close to the election for the courts to require the state to make changes in how it runs its elections. But if it loses, the Justice Department will almost certainly try to take a quick appeal to the Supreme Court and hope for a better outcome there.
That’s why it’s so important that the Judge wrote a strong opinion, thoroughly grounded in the facts and the law. We read through it together tonight.
Tuesday night, I wrote to you about the Judge: “Judge Carter is 82 years old. Bill Clinton appointed him to the federal bench. He’s been a judge in California’s Central District, which includes Los Angeles, since 1998. Judge Carter is a former U.S. Marine who served in Vietnam, where he was awarded the Bronze Star and a Purple Heart. If the Justice Department thinks it’s going to push him around, I suspect it’s in for a rude awakening.”
The opinion traces the history of voting in America and the many challenges to the right to vote, noting President Reagan’s comments when he signed a renewal of the Voting Rights Act in 1982 that the right to vote is “the crown jewel of American liberties, and we will not see its luster diminished.” Then, it jumps straight to the heart of the matter, enjoining the federal government’s request to interfere with California’s vote count:
“Every generation in our history has witnessed repeated clashes between those who seek to limit access to the ballot and those who fight to ensure it. In this case, the federal government seeks to segregate and exclude over 20,000 ballots. This request violates longstanding constitutional principles mandating that states have control over their elections. If Plaintiff’s last-minute request for relief were granted, either party could create chaos for their own political purposes to disrupt the election process. Over 20,000 registered Californians would potentially lose the right that generations of Americans have fought to preserve.”
Judge Carter tracks the history of this litigation, noting that it was only after the state had sent approximately 5.9 million voters that the feds tried to intervene, reaching out to the LA County Registrar and including a thumb drive containing the “‘sensitive and personal identifiable information’ of over 20,000 individuals.” The government identified the people on the list as “likely noncitizens who were sent a vote-by-mail ballot” and gave the state 48 hours to review it. Later that day, the government sent its list to California’s Secretary of State.
The Registrar realized the list he’d been sent wasn’t just for his county, but for the entire state. He also concluded that “DOJ’s instructions were ‘legally prohibited’ because the DOJ failed to provide any informational or evidentiary basis for the list of ‘likely noncitizens.” The administration’s request also failed to “provide methodology for the County to verify the citizenship of the 20,000 individuals on the List in general, let alone in 48 hours.” Minutes after the 48-hour deadline passed, DOJ sued California.
In the context of DOJ’s effort to skip the trial court process, we’ve discussed how important it is to create a factual record about what happened. The district judge makes his decision based on it, and then the judges on the court of appeals aren’t left to guess about what the facts are. That became apparent in the hearing before the Ninth Circuit on Sunday, where DOJ couldn’t explain the methodology used to create its list of 20,000 voters. Judge Carter was able to explain how that worked after evidence was submitted to him for the hearing he held Tuesday before issuing his opinion. He explains what the evidence in the record is in regard to how the government came up with its list of supposed noncitizens:
“The Government represents that first, Homeland Security Investigations (‘HSI’), a component of the Department of Homeland Security (‘DHS’), purchased a voter file that appeared to reflect ‘the actual voter rolls in California, that as of August 2025, may be used for the 2026 federal election’”
“HSI sent the acquired voter profiles for analysis to the Fraud Detection and National Security Directorate (‘FDNS’), a subset of U.S. Citizenship and Immigration Services (‘USCIS’)”
“FDNS then ‘enhance[d]’ the voter data through a ‘reliable third-party data analytics’ and matches the profile to an internal USCIS immigration number ‘that may be the same individual.’” The affiant who made that statement indicated later in the affidavit that “The matches are scored because ‘the resulting data may be incomplete, outdated, or mismatched.’”
“FDNS then compared the potential identity matches to Department of State and Social Security Administration data to screen out U.S. citizens”
“a confidence level was assigned (where a high score supported a ‘strong identity link’) and a manual review was conducted for each match to ‘determine which registered voters [the FDNS investigators] believe are very likely to be aliens based on USCIS’ citizenship data.’”
“FDNS sent its completed analysis to HSI, which undertook a ‘quality review’ to identify issues such as ‘duplicate entries’ and ‘incomplete records’ … followed by an ‘enrichment process’ that utilized ‘additional unique identifiers’ to ‘improv[e]’ the matching process.”
That’s the highly speculative process that led to the Justice Department’s demand that California potentially disenfranchise 20,000 voters. Judge Carter notes that the record also suggests that “DOJ’s actions are indicative of a broad, ongoing pattern of attempted election interference by federal officials.” He points out that DOJ “has filed at least thirty-one lawsuits in federal district courts across the country seeking complete voter rolls from the States. Out of the twenty-six decided cases, the DOJ has prevailed in precisely zero.” In one of those cases, in Northern California, the court explained that “the United States’ process for generating lists creates a ‘high likelihood of error in review’ because United States’ lists include ‘faulty data sources that sweep in U.S. Citizens.’” A Judge in the District of Columbia “concluded recently that a list similar to the one that the federal government utilized here was ‘plagued with inaccuracies.’”
Having laid out the facts, Judge Carter explains why he is declining to enter the injunction the government wants. First off, they haven’t shown they’re likely to succeed in the case—that’s the first element they must prove to get an injunction. The Judge notes that “The United States likely does not have standing or a cause of action to bring a claim for the civil relief it seeks,” which makes it very hard to win. Moreover, “The United States’ requested relief would likely violate federal election law,” specifically, the National Voter Registration Act, which prohibits systematic voter roll purges less than 90 days before an election. It would also violate the Voting Rights Act of 1970, which prohibits government officials from interfering with the right to vote, while the government’s requested relief, the Judge writes, would interfere with voters’ ballots “solely because they ‘may be’ noncitizens.” He continues, “If their votes can be segregated solely because of Plaintiff’s [DOJ’s] unproven allegations (see section below on the unreliability of Plaintiff’s claims), this would render the act of voter registration meaningless and diminish the significance of the Voting Rights Act itself, which Congress could not have intended.”
The second element DOJ must establish to get an injunction is irreparable injury. But here, “Plaintiff’s theoretical risk of imminent harm is solely due to its own neglect,” the Judge writes. That’s because the government purchased California voter rolls back in May and started an investigation—at the time, it estimated that “there may be as many as 190,832 non-citizens registered to vote in California.” But the government didn’t file its lawsuit until “October 15, 2026, mere weeks before election day, and months into the NVRA’s 90-day quiet period.” The law, the Judge points out, prevents a party who played a role in creating a crisis through delay from receiving an injunction, so the government’s “unexplained delay of multiple months refutes its eleventh-hour claim of irreparable harm.” The Judge suggested that if there are cases where the government can establish that a noncitizen registered to vote, it should prosecute them under 18 U.S. Code § 611, the federal statute that makes it a crime for aliens to vote in federal elections.
The third element a party seeking an injunction must prove is that the balance of the equities is in its favor. The government never says the people on its list aren’t citizens, only that it thinks it’s likely they aren’t. In other words, they’re using a whisper of suspicion to deprive people of their voting rights, and bringing their case so late in the day that a reasonable assessment is not possible. It’s a sneak attack on democracy.
Judge Carter lays out the deep flaws in the government’s methodology for deciding who on the roll of registered voters may not be a citizen:
Failure to disclose “the specific matching rules, the specific criteria for its confidence thresholds, [or] any detailed information about the third-party platform and their procedures.”
Waiting until the night before the hearing “to reveal that the third-party platform the government relied on was Lexis Nexis.” “It remains unknown how Lexis Nexis performed its analysis, such as how it ‘linked names to Social Security numbers not available on the California public voter file.’”
Failure to explain “‘what its ‘enrichment process’ entailed or how it occurred.”
Failure to provide “error rates” or “validation against a reliable benchmark” so that the accuracy of the government’s lists could be determined.
Judge Carter concludes, “Omissions of this critical information prevent an evaluation of Plaintiff’s procedure, including how Plaintiff reduced its initial claim of nearly 200,000 alleged noncitizens to 20,000 individuals.” And the government has a track record in this area: “Plaintiff’s disproven allegations with respect to noncitizen voting in other states raise further questions of credibility.” The Judge’s stinging assessment, based on the record, is that: “the Court cannot conclude that Plaintiff’s process is credible. This calls into question its allegation that the individuals on the October List are ‘highly likely to be noncitizen[s].’ … Given that Plaintiff’s entire claim for relief rests on the sincerity of this allegation, Plaintiff’s lack of credibility weighs against a finding in their favor.”
That’s not the kind of language we’re used to seeing a judge invoke against the Justice Department, or at least we weren’t before the second Trump administration. Now, it’s become clear that the lower federal courts have lost confidence in what government lawyers tell them in cases involving the administration’s political agenda. The Judge also finds against the government on the equities because injecting so much unprecedented change into the election process so late in the day would “create a significant administrative burden for Defendants, leading to chaos and upending the election,” and “would likely lead to voter disenfranchisement.”
That last conclusion is important. Judge Carter writes that “those most at risk of being disenfranchised are naturalized citizens. Individuals that the federal government recently identified as noncitizens on voter rolls in different states have repeatedly turned out to be naturalized citizens.” He notes that conclusion lines up with a recent federal whistleblower report “that individuals are identified as noncitizens ‘based solely on DHS data that is unverified, inconsistent with other information, and/or is unexplained’ to the employees making the identifications.” He also notes evidence in the record that “the government gave employees ‘only twelve minutes to determine if a subject is a U.S. citizen.’ … It is no surprise that citizens are wrongly identified as noncitizens.”
Judge Carter also concludes, as did two of the Ninth Circuit Judges last weekend, “that Purcell stands for the principle that ‘lower federal courts should ordinarily not alter the election rules on the eve of an election’” and that “Here, ‘the election is not merely upcoming; it has already started,’” which means that “the Purcell principle applies with even greater force.”
The decision concludes with one last point about the equities in the case. It’s an obvious one, and it’s shocking that it had to be invoked because the President of the United States is trying to undo a fundamental right. Under the heading, “The public interest favors the protection of voting rights,” Judge Carter writes that “Constitutional rights and our democracy are at stake. The public interest favors their protection. Individuals who have met the requirements of California’s voter registration laws must not be deprived of a core right merely because of unfounded allegations stemming from a procedure rife with uncertainty and errors. The public interest also favors the protection of election staff, who are working diligently to ensure that all citizens can cast their votes.” Judge Carter concludes, “If the Executive can discount votes and threaten an ongoing election due to unproven allegations, then our democracy is in danger. This Court declines to be a party to such process.”
Thank goodness for federal district court judges.
If you’ve made it through tonight’s long post, congrats! That should be worth a couple of credits towards a lot degree. I know it ran long, but understanding important decisions like this one takes more than a short summary. It requires nuance, and sometimes, like tonight, reading the Judge’s own words. That’s why I spend time reading the opinions carefully and explaining what matters. I want you to have all the information you need to reach your own conclusions about what’s happening to our democracy.
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We’re in this together,
Joyce