Full Ninth Circuit, 6-5, Lets DOJ Resume Threatening Election Officials on Election Day

On Oct. 30, U.S. District Judge Trina Thompson in San Francisco granted a 17-day temporary restraining order barring the Justice and Homeland Security Departments from threatening to prosecute state and local election officials over noncitizen-voter claims, after suits by SEIU, AFSCME, LULAC and the NAACP. A three-judge Ninth Circuit panel stayed that order on Nov. 2, calling DOJ's letters and ballot-sequestration demands "core Executive functions." Plaintiffs got that panel order vacated, but on Election Day, Nov. 3, the full, 11-judge Ninth Circuit voted 6-5 to reinstate it "pending further order of the court," again letting DOJ and DHS resume the threats while the underlying case continues.

Five dissenting judges, led by Chief Judge Mary Murguia, wrote that the majority's order lets federal officials "compel state election officials to put aside state election procedures" by threatening criminal prosecution of those who refuse — a dispute over how far the Voting Rights Act and the Constitution's Elections Clause let Washington intervene in state-run elections.

The reinstated stay is temporary, "pending further order" of the en banc court; Thompson's underlying TRO, by its own terms, was set to expire Nov. 16, and the case continues in the district court.