Ninth Circuit wipes out ruling allowing Trump administration to threaten election officials

The 9th Circuit Court of Appeals canceled a prior order that briefly permitted the Trump administration to threaten to prosecute state and local election officials who do not follow the department’s directives for handling ballots.

The legal whiplash on the eve of Election Day concerns the Department of Justice’s (DOJ) extraordinary letters to state and local election officials demanding they set aside thousands of ballots or risk criminal penalties before and after Tuesday’s midterm election.

First, a three-judge panel of the appeals court voted 2-1 to pause a lower-court ruling finding that the DOJ’s threats against election officials likely violated federal law outlawing voter intimidation and amounted to interference “with the lawful administration of elections.”

Circuit Judges Carlos Bea and Consuelo Callahanon, both nominated by former President George W. Bush, claimed that U.S. District Judge Trina Thompson encroached “core Executive functions” to initiate investigations into suspected violations of that law.

 “The government’s injury — being barred from requesting that the states segregate ballots from suspected noncitizens — cannot be undone after the fact,” Bea wrote for the majority.

In a dissenting opinion, Circuit Judge Mary Murguia, nominated by former President Barack Obama, warned that the panel’s ruling could not be reconciled with a 9th Circuit ruling last week holding that the DOJ has no authority to pressure state election officials not to count ballots from around 21,000 voters it alleges are noncitizens.

Just hours later, a majority of all 9th Circuit appellate judges voted to vacate the panel’s ruling and consider the DOJ’s bid to stay Thompson’s order.

The decision marks the first time this election cycle that the full 9th Circuit will hear a DOJ request to vacate a lower-court decision blocking the Trump administration’s elections-related activities.

Last week, the full 9th Circuit declined to hear the department’s request to vacate an order barring the Department of Homeland Security (DHS) from sending armed federal agents to Americans’ homes to question their eligibility to vote. In denying that request, the court effectively upheld the order.

Late Monday, the Supreme Court also swiftly rejected the DOJ’s lawsuit against California election officials seeking a court order barring them from counting ballots from people it claims are noncitizens.

In a ruling similar to Thompson’s order, a district judge in Washington, D.C., barred the Trump administration late Monday from creating lists of people it alleged are noncitizens illegally registered to vote and using those lists to coerce state election officials to set aside ballots.

The lawsuit Thompson oversees was filed by the NAACP, the League of United Latin American Citizens and multiple labor organizations representing California election workers.