Ninth Circuit Lets DOJ Resume Ballot Warnings to Election Officials in 6-5 Vote

A divided federal appeals court has put on hold a San Francisco judge’s order that barred the Justice Department and the Department of Homeland Security from demanding that election officials set aside ballots of voters the government suspects are not citizens. An 11-judge en banc panel of the 9th U.S. Circuit Court of Appeals voted 6-5 on Tuesday to reinstate a stay of that order, according to the court’s order and reporting by JURIST and Bloomberg Law.

Later the same day, the full court declined to take up the en banc panel’s decision. A majority of active judges did not vote for full-court rehearing, Senior Circuit Judge S.R. Thomas wrote in a one-page order that closed the en banc proceedings in the case, Service Employees International Union v. Department of Justice, No. 26-7303.

How the 6-5 split broke down

The en banc panel revived a Nov. 2 order from a three-judge panel. Judge Carlos Bea, joined by Judge Consuelo Callahan, wrote that the government was likely to win its appeal. The order described the department’s letters, legal warnings and investigations as “core Executive functions” and found that Section 11(b) of the Voting Rights Act, which bars voter intimidation, does not expressly let private groups sue. Chief Judge Mary Murguia dissented.

A majority of the court’s active judges had voted Monday night to rehear the case, which vacated that panel order; the en banc panel reinstated it on the morning of Election Day. Judge Eric Miller, joined by Judge Mark Bennett, wrote in a concurrence that many of the government’s positions “may have little merit,” but that a district court “does not generally have the authority” to bar the Justice Department from stating its views on criminal law.

Murguia, joined by Judges Ronald Gould, John Owens, Holly Thomas and Roopali Desai, wrote that the ruling clashes with the court’s Oct. 30 decision that the United States cannot force California officials to drop their own election procedures. “These two decisions cannot be reconciled,” she wrote. Desai said the court had issued three conflicting orders within 12 hours, creating “precisely the type of chaos and confusion that the Supreme Court repeatedly cautions against.”

Letters to California and Washington officials

The Service Employees International Union, the American Federation of State, County and Municipal Employees, the League of United Latin American Citizens and the NAACP sued on Oct. 29. They challenged federal letters asking state and county officials in California and Washington to “sequester” ballots of voters the government believed were noncitizens. The letters warned that knowingly facilitating a noncitizen’s vote is a federal crime, according to the appeals court order.

U.S. District Judge Trina Thompson granted a temporary restraining order on Oct. 30. It barred threats of prosecution tied to the government’s list and required the department to tell letter recipients that its demands had been blocked. At a hearing Monday, Assistant U.S. Attorney Kenneth Kao called it “a fair statement” when Thompson asked whether the list had a high error rate, Courthouse News Service reported. Thompson refused the government’s request to pause her order late Monday.

Nov. 13 hearing in San Francisco

The stay remains in effect pending further order of the appeals court. Thompson has scheduled a hearing on a longer-lasting preliminary injunction for Nov. 13, according to court records summarized by SignalData. The appeals court said her restraining order runs through Nov. 16 and that she lacked jurisdiction to shorten it to Nov. 13 after the government appealed.

Developing: The government’s appeal in No. 26-7303 is still pending, and the district court has not ruled on a preliminary injunction.

Sources: U.S. Court of Appeals for the Ninth Circuit, Courthouse News Service, JURIST, Bloomberg Law, SignalData.