Key Points

  • A divided Ninth Circuit panel, in an order by Judge Carlos T. Bea, stayed a temporary restraining order that barred DOJ and DHS from requesting ballot sequestration and from threatening election officials with prosecution.
  • The panel held the 17-day, partly mandatory restraining order reviewable as a preliminary injunction and found the government likely to prevail on the plaintiffs' Voting Rights Act Section 11(b) and Elections Clause claims.
  • Chief Judge Mary H. Murguia dissented, writing that the ruling could not be reconciled with the court's Oct. 30 decision in United States v. California denying the federal government power to compel ballot segregation.
  • The same day, on the vote of a majority of nonrecused active judges, the Ninth Circuit ordered the case reheard en banc and vacated the panel order.
  • The restraining order, by its terms, expires Nov. 16, 2026.

A divided Ninth Circuit panel on Nov. 2 freed the Justice Department to keep asking election officials to set aside the ballots of suspected noncitizens and to keep warning them that counting those ballots could expose them to prosecution. Later that day, a majority of the court's nonrecused active judges voted to rehear the case and vacated the panel's order.

The panel split 2-1. Judge Carlos T. Bea wrote for himself and Judge Consuelo M. Callahan, granting the government's motion to stay, or suspend pending appeal, a temporary restraining order issued Oct. 30 by a federal district court in San Francisco. Chief Judge Mary H. Murguia dissented, writing that the ruling clashed with the court's refusal days earlier to let the federal government force California to set aside such ballots. "These two decisions cannot be reconciled," Murguia wrote.

Murguia signed the two-sentence order. It said that "a majority of nonrecused active judges" had voted to rehear the case en banc and that the panel order "is vacated." The order gave no reasons.

The case now goes to the en banc court. By its terms, the restraining order expires Nov. 16.

On Oct. 13, the Justice Department sent California and Los Angeles County a list of about 20,000 registered voters whom federal agencies identified as "likely noncitizens," according to Murguia's dissent. Letters appended to the panel order asked officials to review the list within 48 hours and to "segregate—not cancel—those individuals' vote-by-mail ballots until their citizenship status can be determined."

After the county objected, an Oct. 16 letter signed by the acting deputy attorney general warned: "If persons knowingly tabulate ballots cast by individuals identified by federal agencies as noncitizens, they risk becoming aiders and abettors to a federal crime." Murguia wrote that uniformed Homeland Security officers then delivered letters to county officials across California, and that federal marshals "reportedly served at least one county employee at home."

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 the Justice Department, the Department of Homeland Security, Attorney General Todd Blanche and Homeland Security Secretary Markwayne Mullin on Oct. 29. The groups claimed the letters to California and Washington officials violated Section 11(b) of the Voting Rights Act, which bars intimidating, threatening or coercing anyone for voting or helping others vote. They also invoked the Constitution's Elections Clause, which gives states authority over how congressional elections are run.

The district court granted the restraining order ex parte, meaning without hearing from the government. The order barred further sequestration requests and "threats" of prosecution. It also required the government to notify every letter recipient that its demands had been enjoined, and required the Justice Department to disclose pending search warrant applications and grand jury subpoenas tied to its lists.

Bea first held that the order, though labeled a restraining order, was reviewable as a preliminary injunction. It ran longer than the default 14-day period, required the government to act, and barred sequestration demands "until and beyond Election Day, which renders later interlocutory relief meaningless for the Government's purposes," Bea wrote. In a footnote, Murguia wrote that "it is not clear that the district court's order is appealable," because it issued without a hearing or any challenge to its basis.

On the Voting Rights Act claim, Bea wrote that Section 11(b) contains no express private cause of action, meaning no explicit right for private parties to sue, and that the statute assigns enforcement to the attorney general. The plaintiffs' theory, Bea wrote, would require courts to imply such a right against the executive branch itself. Describing the letters as policy requests, warnings about federal law and the start of investigations, Bea wrote: "These are core Executive functions. Congress cannot be lightly presumed to have imposed new liability for that conduct."

Bea also found the government likely to defeat the Elections Clause claim. The targeted states had refused the requests, the Ninth Circuit had upheld that refusal, and the Supreme Court had declined emergency relief to the government. "The states' constitutional authority to regulate their elections is therefore unaffected," Bea wrote. The earlier case, United States v. California, asked whether a state must adopt the sequestration process. "Here, we consider only whether the Government can make such a request in the first place," Bea wrote.

On harm, Bea wrote that the plaintiffs faced at most "a possibility of a future prosecution," and that any prosecution "itself supplies the means by which any defect, vindictiveness included, can be raised and remedied." The government's injury from being barred from making its requests, Bea wrote, "cannot be undone after the fact."

Murguia wrote that the California decision was binding on the panel and "all but dispositive here." If federal officials cannot compel states to adopt their procedures directly, Murguia wrote, it is "difficult to imagine how Defendants may indirectly coerce state election officials to disregard state eligibility procedures through threat of prosecution."

Murguia also disputed the government's claimed harm. The restraining order does not bar lawful investigations or prosecutions of voter fraud, Murguia wrote, and "only bars demands or threats of prosecution against election officials for processing ballots from individuals who Defendants allege are ineligible to vote for a two-week period during the administration of an ongoing election."

Murguia invoked the Purcell principle, the Supreme Court's instruction that "lower federal courts should ordinarily not alter the election rules on the eve of an election." "The Constitution's allocation of election procedures to the states is meaningless if Defendants can coerce states into foregoing their chosen procedures by abusing their prosecutorial powers," Murguia wrote.

Bea's order noted that the district court tried at a Nov. 2 hearing to shorten the restraining order to 14 days, but held that the lower court lost jurisdiction to do so once the government appealed. The en banc order set no briefing or argument schedule.