Ninth Circuit Splits 6-5 on Election Day, Letting DOJ Resume Warnings to Election Workers. The Full Court Declined to Step In

Where things stand. For now, the Justice Department and the Department of Homeland Security can again tell state and local election officials to set aside ballots from voters the government flags as possible noncitizens, and can warn those officials about prosecution. On Tuesday, Election Day, an 11-judge panel of the U.S. Court of Appeals for the Ninth Circuit put back on hold a federal judge's order that had barred those warnings (en banc order). The order names five dissenters and doesn't list the majority. Democracy Docket and others report the vote as 6-5. That night, the full court turned down the plaintiffs' request to have all of its active judges take the case. That ended the en banc proceedings on the stay. The appeal itself isn't over.

The case. In SEIU v. U.S. Department of Justice, two unions that represent election workers (SEIU and AFSCME), along with the NAACP and the League of United Latin American Citizens, sued DOJ, DHS, Attorney General Todd Blanche and Homeland Security Secretary Markwayne Mullin. They allege the government has been threatening election workers. On Oct. 30, U.S. District Judge Trina L. Thompson in San Francisco issued a temporary restraining order (TRO, ECF 26). It barred the defendants from demanding that officials stop processing, set aside or refuse to count ballots "solely on the basis" that the government alleges the voter is ineligible. It also barred threatening officials and workers with prosecution for refusing those demands, or for counting ballots under state and federal law. And it ordered DOJ to tell letter recipients the demands had been blocked, and to tell the court about pending search warrant applications and grand jury subpoenas tied to its lists. She ruled before DOJ had responded.

Four orders in about a day:

• Monday, Nov. 2: a panel pauses Thompson's order. Judge Carlos T. Bea wrote for himself and Judge Consuelo M. Callahan. Chief Judge Mary H. Murguia dissented (panel order). Bea wrote that Thompson was "likely wrong on both counts." He said the anti-intimidation section of the Voting Rights Act, Section 11(b), "does not contain an express private cause of action" against the federal government, and that DOJ's letters were "core Executive functions that did not actually disturb the states' regulation of their own elections." He said this case was different from the Ninth Circuit's Oct. 30 decision refusing to make California set aside about 20,000 mail ballots (United States v. California; our coverage). That case asked whether a state "must adopt" the government's process, he wrote. "Here, we consider only whether the Government can make such a request in the first place."
• Late Monday night: the court wipes that out. A judge asked for an en banc vote, and both sides were told to file briefs by 10 p.m. Pacific that night (Dkt. 26). "Upon the vote of a majority of nonrecused active judges," Murguia then ordered the case reheard en banc and vacated the panel's order (Dkt. 31). That put Thompson's order back in force when polls opened.
• Tuesday morning: an 11-judge panel puts the pause back. The Ninth Circuit is so big that "en banc" usually means the chief judge plus 10 randomly drawn judges, not the whole court. The panel was Murguia and Judges Ronald M. Gould, Bea, John B. Owens, Mark J. Bennett, Eric D. Miller, Kenneth K. Lee, Lawrence VanDyke, Holly A. Thomas, Roopali H. Desai and Eric Tung. Its unsigned order says "a majority of the en banc court has voted to reinstate" the panel's order, "pending further order of the court." It gives no reasons of its own. The order "contained no explanation," The Hill reported. Miller wrote a concurrence, joined by Bennett. Murguia dissented, joined by Gould, Owens, Thomas and Desai. Desai also wrote her own dissent, joined by the same four.
• Tuesday night: the full court says no. The plaintiffs asked for what's called "super en banc" review, a hearing before all of the court's active judges (petition). DOJ opposed. It wrote that "to our knowledge, this Court has never previously granted that relief" (Dkt. 38). A judge asked for a vote, and "a majority of the nonrecused active judges did not vote in favor," Senior Judge Sidney R. Thomas wrote as en banc coordinator. "En banc proceedings with respect to the en banc panel's order are concluded." No tally was given.

What it doesn't change. The Supreme Court on Nov. 2 denied DOJ's separate bid to make California segregate the 20,000 mail ballots, in a one-line order (our coverage). That ruling still stands, so California doesn't have to set those ballots aside. What changed Tuesday is whether DOJ can keep asking, and keep warning officials about prosecution, while the case goes on.

The end date is disputed. Thompson's order said it would expire Nov. 16. At a Nov. 2 hearing, with both sides' consent, she moved that to Nov. 13 at 5 p.m. She also denied DOJ's own request for a stay, calling its appeal "premature" (ECF 63). The Ninth Circuit panel said she "lacked the jurisdiction" to change the order once DOJ appealed, and it reviewed the Nov. 16 version. In a Wednesday filing, DOJ again says she lacks jurisdiction over what's on appeal (ECF 74). Either way, her order is on hold. A hearing on a longer-term preliminary injunction is still set for Nov. 13.