9th Circuit en banc court reinstates panel ruling 6-5 after vacating it, freeing DOJ ballot pressure

Mixed · 2Late on Monday 2 November, hours before polls opened on Election Day, the full 9th U.S. Circuit Court of Appeals vacated a three-judge panel ruling issued earlier that day and ordered the case reheard en banc. 1 2 Left · 1Chief Judge Mary Murguia issued the order, which said that "upon the vote of a majority of nonrecused active judges" the case "be reheard en banc." 1 Right · 2The order did not resolve the underlying dispute or set a date for rehearing. Washington Examiner notes that en banc rehearing in the 9th Circuit ordinarily involves an expanded panel of 11 judges rather than every active judge, whereas Fox News describes it as a rehearing by all 11 active judges. 3 4

Left · 1The vacated panel ruling had halted an order by U.S. District Judge Trina Thompson of the Northern District of California. Judges Carlos Bea and Consuelo Callahan, both appointees of President George W. Bush, voted 2-1 for the panel ruling, with Murguia dissenting. Raw Story, citing Politico's Kyle Cheney, reports they found the Justice Department's letters to states were not "coercive" and that the administration was likely to show Thompson's order violated the separation of powers. 1 Right · 1Just the News, citing SCOTUS Wire, says the panel held that the government was likely to succeed and that asking states to separate ballots, warning officials about federal law and investigating suspected violations are core executive functions. 2 Mixed · 2Raw Story, citing Just Security's tracker, reports instead that Bea and Callahan held that Section 11(b) of the Voting Rights Act does not give private groups the right to sue. Washington Examiner quotes former Trump Justice Department attorney Abhi Kambli making a similar argument about whether private plaintiffs can sue, and criticising the district court for ruling ex parte. In dissent, Murguia wrote that the Constitution's allocation of election procedures to the states "is meaningless if Defendants can coerce states into foregoing their chosen procedures by abusing their prosecutorial powers." 5 3

Right · 1Bill Essayli, First Assistant U.S. Attorney for the Central District of California, wrote on X, before the order was restored, that the restraining order had been "appropriately lifted" and that criminal investigations are "a core function of the executive branch, not the judiciary." He later wrote that the department would keep investigating and charging people who violate election laws. Acting Deputy Attorney General Trent McCotter wrote that the department would pursue "every available legal avenue." 4 Mixed · 2Raw Story, citing Politico, says the Monday-night rehearing order restored Thompson's temporary restraining order, which bars the Justice Department from threatening election officials with prosecution. Fox News and Washington Examiner also report that the restrictions were restored while the full court considers the case. That restoration lasted only until the en banc court's Tuesday order reinstating the panel ruling. Just the News's first report does not say what happened to the order. 6 7 Mixed · 3On Tuesday 3 November, Election Day, the en banc court reversed itself by a 6-5 vote, reinstating the 2 November panel order "pending further order of the court." Anadolu Agency called it the court's third order in about 12 hours. Under it, the administration may again ask election officials to set aside ballots tied to suspected noncitizens and warn that knowingly counting unlawful ballots could expose them to federal prosecution. 6 7 8

Centre · 1Anadolu says the reinstated stay also suspends requirements that the administration disclose certain pending warrants and grand jury subpoenas involving allegedly ineligible voters, and that it notify election officials of the district judge's restrictions. 7 Mixed · 2Judge Eric Miller, in a concurrence, acknowledged that many of the government's positions "may have little merit" but said a district court generally cannot enjoin the Justice Department from expressing its views about criminal statutes, even if wrong. Anadolu names Judge Mark Bennett as also writing separately in similar terms. Raw Story says Judge Bea wrote the reinstated panel order. 6 7 Left · 1Chief Judge Murguia, joined by four colleagues, dissented, saying the ruling cannot be reconciled with the court's decision the previous Friday rejecting the Justice Department's bid to force California to set aside roughly 20,000 ballots, so election officials "must choose between complying with two conflicting opinions of our court." Judge Roopali Desai wrote separately that the majority created "the chaos and confusion" the Supreme Court has cautioned against, and that the court could have narrowed Thompson's order instead. 6

Right · 1Just the News said it remained unclear whether the ruling would have any meaningful impact on the Tuesday evening elections. 8 Mixed · 2Raw Story reports that Thompson's order, which it says was issued on 30 October, is set to expire on 16 November. Washington Examiner says the plaintiffs sued on 29 October and that Thompson issued the order the next day without first hearing from the government, finding that the approaching election risked immediate and irreparable harm. It adds that she concluded the challengers were likely to succeed under the Voting Rights Act's prohibition on intimidation and the Constitution's allocation of election authority. 5 3 Left · 1According to Raw Story, Thompson's order bars the federal government from intimidating, threatening or coercing state and local election officials over ballots from voters it claims are ineligible. It also bars demands that those ballots be halted, segregated or left uncounted based solely on those claims, and threats of prosecution when officials refuse. 1

Left · 1The case was brought by the Service Employees International Union, the American Federation of State, County and Municipal Employees, the League of United Latin American Citizens and the NAACP. They are suing the Justice Department, Attorney General Todd Blanche, the Department of Homeland Security and DHS Secretary Markwayne Mullin. 1 Mixed · 2The dispute began when the Justice Department sent letters to election officials in California and Washington asking them to set aside ballots from people it alleges are noncitizens, and warned that knowingly counting them could bring criminal penalties. Raw Story, citing Democracy Docket, says the California demand covered up to 20,000 ballots, and that letters went to officials in all 50 states warning of possible penalties under federal record-keeping law. 2 1 Left · 1Raw Story adds that earlier on Monday the Supreme Court refused the Justice Department's emergency request to force California to set aside the ballots. It also reports that U.S. District Judge Tanya Chutkan barred the Department of Homeland Security and the Justice Department from sending further lists of suspected noncitizen voters to state and local officials. 1

Right · 2Washington Examiner says the Supreme Court's refusal left the department without emergency relief but did not resolve individual voters' eligibility or dismiss the department's underlying California lawsuit. Fox News reports that Attorney General Todd Blanche announced charges against 63 people on Monday, which the department described as its largest surge of voter-fraud arrests since Trump returned to office. 3 4