In the middle of Election Day, a sharply divided federal appeals court handed the Trump administration a major win in its fight over ballots it suspects were cast by noncitizens.
The full Ninth Circuit Court of Appeals, sitting as an 11-judge en banc panel, voted 6-5 on Tuesday afternoon to put on hold a lower-court order that had blocked the administration from asking state and local election officials to set aside those ballots, Fox News and Democracy Docket reported.
The ruling means federal officials can once again ask election administrators to segregate ballots they believe may be unlawful, and can warn those officials that knowingly counting votes cast by noncitizens could expose them to federal prosecution.
How the case got here
The fight began after federal officers delivered letters to election officials in California and Washington asking them to “sequester” the ballots of certain voters the government believed were not citizens. The letters stated that “an alien voting in a federal election is a federal crime—and knowingly facilitating such conduct is equally unlawful.”
Two labor unions and two political groups sued on October 29. The lawsuit, backed by groups including the NAACP and the League of United Latin American Citizens, argued the letters amounted to voter intimidation under the Voting Rights Act and overstepped the states’ authority under the Constitution’s Elections Clause.
U.S. District Judge Trina Thompson agreed and issued a temporary restraining order on October 30. It barred the government from making further ballot-sequestration requests or threats of prosecution, ordered it to tell election offices that its demands had been blocked, and required the Justice Department to disclose certain pending warrant applications and grand jury subpoenas. The order was set to run until November 16.
What followed was legal whiplash. A three-judge Ninth Circuit panel first paused Thompson’s order 2-1. Hours later, the court vacated that decision and ordered the full rehearing. Early Tuesday morning the restrictions were back in place. Then on Tuesday afternoon, the en banc court reinstated the pause, its third order in roughly 12 hours.
What the majority said
Writing for the majority, Judge Eric Miller, a Trump appointee, said the Justice Department was “expressing its views about criminal statutes” through the letters. The majority held that deciding which crimes to investigate is a core function of the executive branch, and that the groups suing had no standing to challenge the letters under the Voting Rights Act’s ban on voter intimidation.
The court also suspended the requirement that the administration disclose pending warrants and grand jury subpoenas involving allegedly ineligible voters.
Not everyone in the majority embraced the administration’s legal theories. According to SCOTUS Wire, as reported by Fox News, Miller and fellow Trump appointee Judge Mark Bennett acknowledged that the Justice Department’s interpretations might lack merit, but said courts generally cannot stop the department from stating how it reads criminal law.
The dissent
Five judges dissented. Chief Judge Mary Murguia, an Obama appointee, warned that threats of prosecution could leave election officials facing conflicting legal obligations, and argued the ruling clashed with a decision the court made last week. Biden appointee Judge Roopali Desai separately raised concerns about confusion and possible voter disenfranchisement.
What it does and doesn’t do
The ruling does not force any state to segregate ballots, and it does not establish that the voters in question are noncitizens. It allows federal officials to make the requests while leaving it up to state election authorities whether to comply.
Still, coming from the Ninth Circuit, long seen as one of the most liberal appeals courts in the country, the decision is a notable Election Day victory for an administration that has made election integrity one of its top priorities, as Americans cast the final ballots in the midterm elections.