Presumption of Irregularity · November 2, 2026
Two losses in one state, one day, and nobody's even counted yet
Commentary. Opinions are mine; the evidence is linked.
It’s honestly almost impressive. On the night before the election, the Justice Department lost its fight over California’s ballots twice, in two different courts, hours apart. Nobody has counted a single vote yet.
Loss #1: The Supreme Court, in one sentence
DOJ went to the Supreme Court asking it to make California set aside about 20,000 ballots belonging to people on a federal “likely noncitizen” list. Justice Kagan referred the application to the full Court, and here is the Court’s entire answer:
“The application for injunction pending appeal presented to Justice Kagan and by her referred to the Court is denied.”
No explanation, and no dissents noted. (Order, No. 26A624) D
Short on time? Congratulations, you just read the whole thing.
Loss #2: Chief Judge Boasberg, in twenty pages
If you want something longer, Chief Judge Boasberg’s opinion in CHIRLA v. DHS (opinion · docket) is twenty pages of “don’t boo, vote.” D He ordered DOJ and DHS to stop demanding that California election officials set aside ballots, or change their procedures in any other way, because a voter appears on the federal lists. A few highlights:
- The Constitution: the Executive Branch “has likely violated the Constitution’s Elections Clause,” which leaves election rules to the states and Congress. Not the President.
- The law DOJ leaned on (18 U.S.C. 611, which makes it a crime for noncitizens to vote) “does not regulate the time, place, or manner of elections.”
- The threat against election officials: DOJ suggested that officials who followed state law might be helping people vote illegally. The judge called that “a red herring.” Officials “likely cannot aid or abet” a crime “by conforming to the letter of state law.”
- The list: he found the expert who checked it “well qualified and credible.” At least 22 U.S. citizens in one group are certain matches on the “noncitizen” list, with 66 more nearly certain.
- My favorite part: DOJ told the court its letters were “not self-executing” while also saying officials ignore them “at their own legal peril.” The court noted that the letters’ “predictable effect,” and their “expressly intended effect,” is to get officials to comply. As the judge put it, quoting the Supreme Court, courts “are not required to exhibit a naiveté from which ordinary citizens are free.”
What it doesn’t do
This order covers California. DOJ can appeal it, and it probably will. It doesn’t stop prosecutions of people who actually vote illegally, and it says so. The other fights (Alaska’s appeal, Washington, the grand-jury subpoenas to election officials) are still going. The tripwire board has all of it.
But tonight the courts are holding: four of them now, including the Supreme Court. So go vote. Bring a friend. And don’t boo.
— Amanda
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