A federal appeals court on Nov. 3 reinstated a decision that stays a restraining order that had prevented U.S. officials from requesting that states sequester ballots from suspected noncitizens and from threatening officials with prosecution if they did not act.
The split ruling from the U.S. Court of Appeals for the Ninth Circuit restored a Nov. 2 order from three judges on the court that granted the government’s motion for a stay pending appeal of a temporary restraining order previously entered by a federal judge.
That judge, Trina Thompson of the U.S. District Court for the Northern District of California, said in her October order that the government appeared to be violating federal law by trying to intimidate election workers and interfere with election state administration.
She barred the Trump administration from requiring election officials to remove registered voters from voter rolls.
She also prohibited the Department of Justice from telling election officials not to provide ballots to specific registered voters, or to sequester ballots solely based on the administration’s allegations that those people were not eligible to vote.
The order was to remain in effect until the evening of Nov. 16.
The administration asked for a stay pending the outcome of an appeal of the ruling, and a three-judge panel of the Ninth Circuit on Nov. 2 granted the motion.
A majority of active judges on the court ruled later on Nov. 2 that the panel’s move was vacated and that the case would be reheard en banc.
Ninth Circuit rules state that if an en banc request is accepted, then the en banc court shall consist of the circuit’s chief judge and 10 additional judges randomly drawn.
Six of the judges sided with the Trump administration. Most did not explain their decision.
Circuit Judge Eric Miller, one of the six, said in a concurring opinion joined by another judge that “many of the positions taken by the federal government in its recent communications to state election officials may have little merit” but that a district judge “does not generally have the authority to enter an injunction prohibiting the Department of Justice from expressing its views about criminal statutes, even if the court determines that those views are incorrect.”
Chief Judge Mary Murguia said in a dissent joined by four judges that she saw the ruling as saying that federal officials can compel state officials to put aside state procedures in favor of the procedures the federal officials want “by threatening prosecution of state and local election officials who fail to comply.”
Both Miller and Murguia cited an Oct. 30 ruling from a Ninth Circuit panel in a separate case that concluded that the federal government could not order California officials to segregate ballots from alleged noncitizens.
Circuit Judge Roopali Desai said in a separate dissent that the flurry of rulings within hours will create chaos and confusion in the election, which the Supreme Court warned against in a decision called Purcell.
“Rather than issue conflicting orders, we could have—and should have—considered alternative approaches, including modifying or narrowing the scope of the district court’s temporary restraining order,” he said.
Miller said in the concurrence that “a majority of the full court evidently determined that Purcell did not bar last night’s order granting rehearing en banc and vacating the panel’s stay.”
He added, “If that is true, then it is difficult to see how Purcell could bar this morning’s order undoing that action.”
