Trump administration can threaten election officials again after latest appeals court reversal

The 9th Circuit Court of Appeals officially paused a lower-court order barring the Trump administration from threatening state and local election officials with criminal penalties if they do not follow the Department of Justice’s (DOJ) directives for handling ballots.

In a 6-5 vote, an 11-judge en banc — or “full court” — panel found that U.S. District Judge Trina Thompson erred last week in determining that the DOJ’s recent threatening letters to election officials across the country likely violated federal law.

Writing for the majority, Circuit Judge Eric Miller, whom President Donald Trump nominated in his first term, instead said that the DOJ, through the letters, was “expressing its views about criminal statutes.”

The order, issued in the middle of Election Day, added to the legal whiplash in a lawsuit by the NAACP, the League of United Latin American Citizens and multiple labor organizations seeking to bar the Trump administration’s threats against election officials.

Several hours after the 11-judge panel issued its ruling, the civil rights organizations and labor unions then requested what’s known as a “super en banc” — a type of full court rehearing that’s unique to the 9th Circuit.

Because the circuit is so large, its standard “en banc” procedure involves a smaller group consisting of the chief judge plus 10 randomly drawn active judges. A super en banc could entail all 29 active circuit judges rehearing the DOJ’s request to stay Thompson’s order.

“Federalism principles of the highest order, embedded in our Constitution, require correction of this erroneous decision by the full Court,” the plaintiffs wrote.

The request is extraordinary. The 9th Circuit has likely never before held a super en banc hearing.

Early Tuesday morning, the 9th Circuit paused an order by a three-judge appeals panel that briefly permitted the Trump administration to issue its threats. But then the en banc panel of 11 judges reinstated the three-judge panel’s decision in its latest ruling Tuesday afternoon.

The panel asserted that Thompson encroached on “core Executive functions” to initiate investigations into suspected violations of that law. It also held that plaintiffs had no standing to challenge the DOJ’s letters under the Voting Rights Act’s (VRA) prohibition on voter intimidation.

The panel further asserted that the VRA’s prohibition on voter intimidation does not apply to the federal government — an extraordinary argument that the Trump administration has recently adopted.

In his opinion, Miller agreed with the panel’s determinations on the VRA.

Writing for the five appellate judges who dissented, Mary Murguia — the chief judge of the 9th Circuit — said the court’s latest decision could not be reconciled with its conclusion last week that the federal government had no authority to pressure state election officials not to count ballots from around 21,000 voters it alleges are noncitizens.

“Today, by contrast, we hold, sitting en banc, that several federal agencies and officials … may compel state election officials to put aside state election procedures in favor of Defendants’ preferred procedures by threatening prosecution of state and local election officials who fail to comply,” Murguia wrote.

Thompson set her order to expire on Nov. 16.