Courts Weigh Federal Bids to Set Aside Ballots as the Early Vote Tops 31 Million

October 28, 2026 · Category: Field & Elections

With six days left before the Nov. 3 midterms, the fight over which ballots get counted has moved into federal court. On Tuesday, U.S. District Judge David O. Carter said he intends to appoint a special master to examine how the Justice Department built its list of about 20,000 California registered voters it calls "likely" noncitizens, ABC News reported. The department wants those voters' mail ballots set aside until their citizenship is confirmed. Carter did not rule on its request for a temporary restraining order, but he appeared skeptical of forcing what he called a "monumental change" in an election already underway, and said he would issue an order on how the case proceeds by Wednesday.

The hearing came a day after the Ninth Circuit rejected, 2-1, the department's attempt to get an appeals court order first, The Guardian reported. The accuracy of the list is a central question. Los Angeles officials told the court that a sample of 200 names included a "high percentage" of people who say they were born in the United States.

Washington is next. Federal prosecutors there gave Secretary of State Steve Hobbs until Wednesday to review 405 registered voters they say are noncitizens and to hold back any ballots from them, warning they would seek emergency relief otherwise, CBS News reported. Hobbs questioned the list, which his office said includes people who last voted in the 1990s, and said the timing "is no doubt intended to cast unfounded suspicion on the results." CBS also noted that federal judges have dismissed 27 of the administration's lawsuits seeking states' full voter rolls.

None of this has slowed turnout. More than 31 million people had voted early as of Tuesday, based on data from 47 states and the District of Columbia, Spectrum News reported. South Carolina has already passed its last midterm early-vote record, and Georgia is near 2 million. In Texas, nearly 4.5 million people voted in the first seven days, or 23.4% of registered voters, ahead of 2022 but slightly behind 2018's 24.3%, the Texas Tribune reported. A Republican analyst quoted there expects 20% to 30% of all Texas votes to be cast Wednesday through Friday, when early voting ends.

The two stories are connected. When eligibility challenges hit only days before Election Day, local officials have to plan how they would handle and track any ballots a court orders set aside, and voters on a disputed list may need to show they are eligible while ballots are still arriving.

Why it matters

A court order to set ballots aside this close to Election Day could delay final counts in California and Washington and leave individual voters unsure whether their ballots will count. Wednesday brings both Judge Carter's promised order and Washington's deadline, while early voting heads into its busiest stretch in states like Texas.

Sources

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