California's election workers went into Election Day protected by a court order that had been lifted and restored again within a single night. On Monday, November 2, a three-judge panel of the U.S. Court of Appeals for the Ninth Circuit voted 2-1 to pause a restraining order that bars the Justice Department from demanding that election officials set aside ballots from suspected noncitizens and from threatening officials with prosecution. Hours later, a majority of the full court's active judges voted to rehear the case before an 11-judge en banc court, vacated the panel's ruling, and put the restraining order back in force — where it stood when polls opened on Tuesday, November 3.

Source: Associated Press

The order at the centre of the fight was issued on Friday, October 30, by U.S. District Judge Trina L. Thompson in San Francisco, in a case brought by the SEIU, AFSCME, the NAACP and the League of United Latin American Citizens. It bars the Justice Department and the Department of Homeland Security from making further requests that officials sequester — set aside and not count — ballots tied to the federal government's lists of suspected noncitizens, and from threatening, intimidating or coercing state and local election officials and workers over those ballots. As this site reported when the order was issued on October 30, it also required the department to tell officials who had received its letters that the demands had been blocked.

Source: The Digital Free Press (court orders, 9th Cir. No. 26-7303)

How election eve unfolded, ruling by ruling

Writing for the panel majority, Judge Carlos T. Bea, joined by Judge Consuelo M. Callahan, said Judge Thompson was 'likely wrong' on both the Voting Rights Act and the Constitution's Elections Clause. The majority said the section of the Voting Rights Act relied on by the plaintiffs gives enforcement power to the attorney general and does not clearly allow private groups to sue the executive branch. Describing what the government had actually done, Bea wrote that it 'delivered letters to state and local officials that requested that the states implement the Executive's preferred policy, warned those states of the strictures of federal law, and instigated investigations into suspected violations of that law. These are core Executive functions.' Because states had refused the requests, the majority said, their authority over their own elections was unaffected. The panel also held that Thompson lacked jurisdiction to change her order at a hearing on Monday, after the government had already appealed.

Source: The Digital Free Press (court orders, 9th Cir. No. 26-7303)

Chief Judge Mary H. Murguia dissented. 'Last Friday, we held that the United States has no authority to compel state elections officials to disregard their own lawful election procedures,' she wrote. 'Today, by contrast, we hold that several federal agencies and officials … may compel state election officials to put aside state election procedures in favor of Defendants' preferred procedures by threatening prosecution of state and local election officials who fail to comply. These two decisions cannot be reconciled.' She quoted an October 16 department letter to Los Angeles County officials: 'If persons knowingly tabulate ballots cast by individuals identified by federal agencies as noncitizens, they risk becoming aiders and abettors to a federal crime.'

Source: The Digital Free Press (court orders, 9th Cir. No. 26-7303)

The panel's ruling did not survive the night. Before the night was out, a majority of the Ninth Circuit's active judges voted to rehear the case en banc, and the en banc order — filed as part of case No. 26-7303 — vacated the panel decision. With the pause wiped out, Thompson's restraining order was back in effect as voting began. First Assistant U.S. Attorney Bill Essayli, whose Central District of California office sent many of the letters, had posted on X after the panel ruling that the restraining order 'has been appropriately lifted'; hours later, it had been restored.

Source: WorkersRights.news

The dispute underneath: 20,000 names and who controls the count

The litigation grows out of the Justice Department's October effort to have California set aside the mail ballots of roughly 20,000 people it says are likely noncitizens. The department sued California Secretary of State Shirley Weber and Los Angeles County Registrar-Recorder Dean Logan on October 15, and its letters went to election officials in 57 of California's 58 counties. California refused to sequester the ballots. According to reporting cited by the plaintiffs and news organisations, independent checks found U.S. citizens on the department's list; the department says it is enforcing the federal ban on noncitizen voting, which is a crime under U.S. law. Both claims are now before several courts at once.

Source: WorkersRights.news

Monday brought the administration losses in the two related cases as well. The Supreme Court denied, without noted dissent, the department's emergency request to force California to set aside the roughly 20,000 ballots. And in Washington, Chief U.S. District Judge James E. Boasberg issued a separate injunction on Monday barring the department from issuing such demands to California officials, finding the executive branch had likely violated the Elections Clause, which gives states — and Congress, not the executive acting alone — authority over election rules. The en banc ruling does not change either of those orders; it decides only whether the department may resume its requests and warnings while its appeal proceeds.

Source: Associated Press

Why immigrant communities are watching this case

The flagged lists at the heart of the case are lists of suspected noncitizens — a category that sits close to home for naturalised citizens, who are fully entitled to vote but whose names can surface in database-matching exercises. California is home to one of the largest Punjabi communities in the United States, concentrated in the Central Valley, Sacramento, the Bay Area and Southern California, and many of its voters are naturalised citizens or the children of immigrants. The unions that brought the case, the SEIU and AFSCME, represent many of the state and local election workers who staff vote centres and count ballots, and they argued the department's letters were aimed at the people doing the counting as much as at the ballots themselves. The department and its supporters answer that asking states to check citizenship is a core law-enforcement function and that only citizens may vote in federal elections — a rule neither side in the case disputes. What is disputed is whether the executive branch may press that demand with prosecution warnings while ballots are being cast and counted.

Source: WorkersRights.news

What happens next

The case now goes to an 11-judge en banc court of the Ninth Circuit, which will decide whether Thompson's restraining order was lawful; no rehearing date had been reported by Tuesday morning. Until then, the restraining order stands, through November 16 unless a court extends or dissolves it. Separately, Boasberg's injunction for California remains in place, the Supreme Court's refusal stands, and California's counties will count and certify the November 3 vote under state procedures. Any ballots cast in the midterms remain subject to the ordinary state canvass, and the department retains its ability to bring individual criminal cases — as it did on Monday, announcing election-crime charges against 63 people nationwide, including six more Los Angeles County defendants in its Operation Protect the Vote, cases this site reported separately.

Source: The Digital Free Press (court orders, 9th Cir. No. 26-7303)