A federal appeals court handed the Trump administration’s Justice Department a win on Election Day, pausing a judge’s order that barred the department from threatening state and local election officials with prosecution over how they handle disputed ballots.
An expanded 11 judge en banc panel of the 9th U.S. Circuit Court of Appeals voted 6 to 5 on Tuesday to block the temporary restraining order issued by U.S. District Judge Trina Thompson. The ruling lifts limits on the DOJ’s demands that election officials set aside ballots from voters the government suspects are noncitizens, along with its warnings that officials who refuse could face criminal prosecution.
Thompson, a Biden appointee in San Francisco, issued her order on Oct. 30 in a lawsuit brought by SEIU, AFSCME, LULAC and the NAACP. The order barred the DOJ and the Department of Homeland Security from threatening, intimidating or coercing election officials into halting ballot processing, from demanding that ballots of voters the government calls ineligible be set aside or left uncounted, and from threatening prosecution for lawfully counting them. Thompson found the threats likely violated federal law.
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The lawsuit followed DOJ warnings that it could prosecute election officials across California if they processed up to 20,000 ballots it claims came from likely noncitizens. The department made a similar demand in Washington state over ballots from 405 people, though its own letter acknowledged some of them may have since become citizens. California officials have said the federal list is unreliable and dispute the number.
Tuesday’s decision capped a night of legal whiplash. Late Monday, a three judge 9th Circuit panel voted 2 to 1 to pause Thompson’s order, with the majority reasoning that the government’s demands were core executive functions. Within hours, a majority of the court’s active judges voted to rehear the case en banc and vacated the panel’s ruling, which put Thompson’s order back in effect as polls opened. The en banc court then suspended the order on Tuesday.
The ruling split the court nearly down the middle. Chief Judge Mary Murguia, joined by four other judges, dissented, warning that the decision lets federal officials force state election officials to abandon state procedures “by threatening prosecution of state and local election officials who fail to comply.” Thompson had also written that election workers were left fearing federal prosecution over “questionable lists of noncitizens created by defendants with assistance from artificial intelligence.”
The administration has argued the restrictions overstepped. After Thompson’s ruling, a DOJ spokesperson said she acted without even waiting to hear from the United States, and the panel majority found the government was likely to show her order violated the separation of powers.
Tuesday’s ruling deals only with Thompson’s order. The DOJ lost several other election eve fights over the same ballots. On Monday, the Supreme Court rejected the department’s emergency request to force California to set aside roughly 20,000 mail ballots, with no justices publicly dissenting. Chief Judge James Boasberg barred the DOJ and DHS from demanding that California officials segregate those ballots, finding the administration likely violated the Constitution’s Elections Clause. And Judge Tanya Chutkan temporarily barred the agencies from sending states lists of voters they say may not be citizens and from asking officials to set those ballots aside.
Later Tuesday, the 9th Circuit declined to reconsider the decision with the full court, leaving the stay in place while ballots are processed and counted in California and Washington. Thompson’s order was set to expire on Nov. 16 regardless, so unless she extends it, the restrictions end on their own in less than two weeks. For now, the Supreme Court ruling and the orders from Boasberg and Chutkan are what stand between election officials and the DOJ’s ballot demands.
