A three-judge panel of the U.S. Court of Appeals for the 9th Circuit sounded deeply skeptical on Thursday, October 29, of the Trump administration's emergency bid to restart its pre-election immigration enforcement surge — a program critics call the “Unlawful Voter Initiative” — four days before the November 3 midterm elections. The hearing was the latest development in a case Awaaz Punjab has been following since a federal judge in California blocked the initiative on October 21 and civil-rights groups sued to stop it.
Source: Democracy Docket
“So, why is the rush?” Judge Sidney Thomas asked the government's lawyer during the hearing, as reported by Democracy Docket and the Election Law Blog. “What's the irreparable harm for four days to, as the district court said, let the elections occur, and then … if you want to prosecute later, fine.” Pressing further, he asked: “What do you need in the next four days? What are you prevented from doing in the next four days? You can't prosecute anybody in four days. You can't convict them in four days. Why do you need this?”
Source: Election Law Blog (reporting Law360 coverage)
Justice Department attorney Gabriel Schonfeld answered that the government faces “a far broader chill” than the relatively narrow set of investigations at issue, and, as the Election Law Blog reported, was frank that the looming election was one of the reasons the administration considers it urgent that agents be able to pursue the effort in the coming days. He also argued the injunction “would be improper on any time frame.” The panel gave no ruling from the bench; a decision on the stay request is expected in the coming days.
What the initiative is, and what the district court blocked
Under the initiative, the Department of Homeland Security (DHS) and Immigration and Customs Enforcement (ICE) generated target lists of people alleged to have registered to vote unlawfully and sent agents to question them about their citizenship and eligibility — in nine states: California, Connecticut, Georgia, Missouri, Nevada, New York, Pennsylvania, Washington and Wisconsin. Pro-voting groups, joined by the city of San Francisco and Santa Clara County, California, sued in September, arguing the program violates Section 11(b) of the Voting Rights Act, the U.S. Constitution and federal law.
Source: Democracy Docket — case page
On October 21, the district court blocked the administration from conducting the election-related field operations and interviewing likely U.S. citizens in those nine states, finding, in Democracy Docket's summary, that the investigations promote “ongoing intimidation.” The court also barred the government from using “target lists” assembled from flawed databases. The administration appealed to the 9th Circuit on October 26, asked the district court for a stay on October 27 and, when that was refused, asked the appeals court for the stay that Thursday's hearing considered. The injunction itself expires after Election Day.
The plaintiffs say the target lists were built to single out naturalized U.S. citizens — Americans who were born abroad and later took the citizenship oath — based on conduct before their naturalization, using data the government itself conceded was faulty. For Punjabi and other immigrant communities, that is the heart of the case: a citizen's right to vote being questioned at their own front door, days before an election, because of where they were born.
“Isn't part of this an effort to instill fear?”
Judge Kim Wardlaw focused on the program's publicity. Federal agents have brought film crews on operations and posted videos of armed, masked agents pulling people from homes and cars, and DHS set up an online portal so agents could immediately upload photos and clips — a system the plaintiffs' attorney, Hayden Johnson, told the court “DHS has never done before” and was built “just for this purpose.” Judge Wardlaw asked: “I'm wondering where the PR aspect of this fits in, because it seems what you're publicizing — militarized people with masks on pulling people out of the house, and the people wearing their pajamas — I mean, isn't part of this that the program, or whatever it's called, 'initiative,' has an aspect of it that seemingly actually wants to intentionally make an effort to instill fear?”
Johnson argued that “the fear is the harm”: voters who see the videos and know the initiative targets naturalized citizens are intimidated from taking part in the midterms. Members of the California Nurses Association and the Voto Latino Foundation, two of the groups that brought the lawsuit, say the operations are already stopping their members from carrying out voter-mobilisation work such as promoting early voting and registering new voters, because even eligible voters fear being swept up. The third judge on the panel was Judge Anthony Johnstone.
Background: noncitizen voting claims and the wider court fight
Noncitizen voting in federal elections is already illegal, and election experts across the political spectrum have long found it to be rare. The administration has made it a central theme of its pre-election enforcement, and this case is one of several running in parallel: in a separate California case this week, U.S. District Judge David O. Carter rejected the Justice Department's emergency bid to set aside roughly 20,000 mail ballots from voters the department alleged were likely noncitizens — a ruling Awaaz Punjab reported earlier this week. Common Cause, the NAACP, the League of Women Voters and the Justice Connection filed friend-of-the-court briefs supporting the challenge on October 28.
What happens next
The panel — Judges Thomas, Wardlaw and Johnstone — is expected to rule on the stay request within days, because the injunction expires after Election Day, November 3. If the court refuses the stay, the October 21 block stays in force through the vote in all nine states and the field operations remain paused. If it grants the stay, DHS and ICE could resume the operations immediately, in the final days of voting. Either way, the underlying lawsuit continues, and the losing side can ask the full appeals court or the U.S. Supreme Court to intervene — a route the administration has already signalled it is willing to take in the parallel ballots case.
For voters in the nine states — including large Punjabi communities in California, New York, Washington and Pennsylvania — the practical position until the panel rules is unchanged: the district court's order is in effect, the home-visit operations are blocked, and any eligible voter, naturalized or native-born, can lawfully register and vote. Voters who are approached by agents about their eligibility can decline to answer questions at the door and can report the encounter to their county elections office or to the plaintiffs' organisations tracking the case.