The US Court of Appeals for the Ninth Circuit has chosen not to revisit its previous decision that paused restrictions on the Department of Justice’s communications with election officials. This leaves the stay in effect as ballots continue to be processed and counted in ongoing elections. On Tuesday, an en banc panel consisting of 11 judges voted 6–5 to reinstate a stay of a district court order. The original order had prohibited federal officials from demanding that ballots from suspected noncitizens be set aside and from intimidating officials with prosecution threats for not complying with such demands.
The temporary restraining order was initially issued by US District Judge Trina Thompson on October 30 in response to a lawsuit filed by several organizations, including the Service Employees International Union and the NAACP. These groups challenged the Justice Department’s communications to election officials in California and Washington, which instructed them to segregate ballots from supposed noncitizens. Additionally, the order mandated that the government notify recipients that the demands and threats were not enforceable and required updates to the court regarding pending legal actions against alleged ineligible voters. The order was set to expire on November 16.
On Monday, a divided three-judge panel issued a stay of the order, suggesting the government’s likelihood of success on appeal. Writing for the majority, Judge Carlos Bea maintained that the government’s requests and threats fell within the purview of executive authority. The panel also noted that Section 11(b) of the Voting Rights Act does not explicitly authorize private lawsuits against federal entities. Subsequently, a majority of the court’s active judges voted to rehear the case en banc, nullifying the panel’s previous ruling. The following day, the en banc panel reinstated the stay, aligning with their earlier decision.
In a concurring opinion, Judge Eric Miller, backed by Judge Mark Bennett, expressed skepticism regarding the government’s legal position but emphasized the typical limitations on district courts prohibiting the Department of Justice from asserting its interpretation of criminal laws. An opposing view came from Chief Judge Mary Murguia, who, with four other judges, dissented. She argued that this decision contradicted the court’s earlier ruling forbidding the government from requiring California to separate ballots and highlighted the precarious position of election officials caught between state guidelines and potential federal repercussions.
Judge Roopali Desai also issued a dissent, criticizing the court’s issuance of three disparate orders around Election Day, which she warned could result in confusion for both voters and election officials. The nuanced legal and procedural intricacies of this case reflect ongoing tensions and scrutiny over electoral integrity and federal oversight, particularly in highly contested states. Detailed coverage and analysis can be found on JURIST.