Key Points

  • A majority of an 11-judge Ninth Circuit en banc panel reinstated a Nov. 2 three-judge order, written by Judge Bea, staying a district court's temporary restraining order against DOJ and DHS ballot-sequestration letters.
  • The three-judge order held that Section 11(b) of the Voting Rights Act likely provides no private cause of action against the Executive and that the government's requests to states were core Executive functions that did not violate the Elections Clause.
  • The full court declined to rehear the en banc panel's order, and en banc proceedings on that order were declared concluded.
  • Judge Miller, joined by Judge Bennett, concurred, writing that district courts generally cannot enjoin the Justice Department from expressing its views about criminal statutes.
  • Chief Judge Murguia and Judge Desai, each writing for five judges, dissented, citing a conflict with United States v. California and the Purcell principle against late changes to election rules.

A divided federal appeals court on Tuesday, Election Day, cleared the Justice Department and the Department of Homeland Security to resume asking election officials to set aside the ballots of voters the government suspects are noncitizens, and to resume warning those officials that counting such ballots could expose them to prosecution.

An 11-judge en banc panel of the U.S. Court of Appeals for the Ninth Circuit voted to reinstate a Nov. 2 order by Judge Carlos T. Bea. That order had stayed, or suspended, a temporary restraining order that a federal district court in San Francisco entered on Oct. 30. Five of the 11 judges dissented, led by Chief Judge Mary H. Murguia.

The ruling leaves the restraining order, which barred further ballot-sequestration requests and "threats" of prosecution until Nov. 16, on hold while the government appeals. It also capped a sequence that Judge Desai described in dissent: "In the span of twelve hours in the middle of an ongoing election and on the literal eve of Election Day, our court issued three conflicting orders."

A majority of the court's active judges had voted overnight to vacate the three-judge order. "Mere hours after we vacated the order, and after the polls opened on Election Day, the newly drawn en banc panel decided to simply reinstate the vacated three-judge panel's order," Judge Desai wrote. Later on Tuesday, the full court declined to rehear the en banc panel's order, ending en banc proceedings on it.

Two unions, the Service Employees International Union and the American Federation of State, County and Municipal Employees, joined the League of United Latin American Citizens and the NAACP in suing the two departments, Attorney General Todd Blanche and Homeland Security Secretary Markwayne Mullin on Oct. 29. The suit targeted letters that federal officers delivered to election officials in California and Washington, which named people the government believed were noncitizens and asked officials to "segregate—not cancel" their mail ballots until citizenship could be determined.

A Justice Department letter to Los Angeles County put its California list at more than 20,000 people. A letter to Santa Clara County listed 902 names and warned that "[a]n alien voting in a federal election is a federal crime—and knowingly facilitating such conduct is equally unlawful."

The district court entered the restraining order without a hearing or opposition from the government. Writing for a divided Nov. 2 panel that included Judge Consuelo M. Callahan and, in dissent, Chief Judge Murguia, Judge Bea held that the order was appealable as a preliminary injunction because it ran past the default 14 days, required affirmative steps and would make later relief meaningless after Election Day.

Judge Bea wrote that the plaintiffs' claim under Section 11(b) of the Voting Rights Act, which bars intimidating, threatening or coercing anyone for voting or helping others vote, was likely to fail. "Plaintiffs' VRA claim faces an immediate problem: Section 11(b) does not contain an express private cause of action," Judge Bea wrote. Of the letters, the opinion said: "These are core Executive functions. Congress cannot be lightly presumed to have imposed new liability for that conduct."

The panel also found the government likely to defeat the claim under the Elections Clause, which gives states authority over how congressional elections are run. The states refused, and the Ninth Circuit backed them on Oct. 30 in United States v. California. That case asked whether a state must adopt the sequestration process, Judge Bea wrote. "Here, we consider only whether the Government can make such a request in the first place."

Judge Miller, joined by Judge Bennett, concurred in the en banc order and wrote that "a district court does not generally have the authority to enter an injunction prohibiting the Department of Justice from expressing its views about criminal statutes, even if the court determines that those views are incorrect."

The concurrence also addressed Purcell v. Gonzalez, a 2006 Supreme Court decision whose principles the dissent invoked, quoting a 2026 Supreme Court ruling's statement that "lower federal courts should ordinarily not alter the election rules on the eve of an election." Because a majority of the full court had "evidently determined" that Purcell did not bar the overnight vacatur, Judge Miller wrote, "it is difficult to see how" it could bar the reinstatement.

Chief Judge Murguia, joined by Judges Gould, Owens, H.A. Thomas and Desai, wrote that the majority had let federal officials accomplish through threats of prosecution what the California decision forbade them to compel directly. "These two decisions cannot be reconciled," the chief judge wrote. Election officials and workers now "must choose between complying with two conflicting opinions of our court: follow our decision in California and risk prosecution by the United States or accede to the Defendants' demands and risk violating state law," the dissent said.

Judge Desai, writing separately for the same five judges, quoted Purcell's warning that "Court orders affecting elections, especially conflicting orders, can themselves result in voter confusion and consequent incentive to remain away from the polls." The majority, Judge Desai wrote, "could have narrowed the scope of the temporary restraining order to preserve the government's ability to conduct investigations, without allowing it to intimidate state election officials and interfere in the administration of an ongoing election."

The reinstated stay remains in effect "pending further order of the court" while the government's appeal proceeds. By its terms, the restraining order expires on Nov. 16. The panel said the district court lacked jurisdiction to shorten it to 14 days at a Nov. 2 hearing because the government had already appealed.