Appeals court wipes out Trump DOJ’s brief victory in California

The 9th U.S. Circuit Court of Appeals vacated a ruling late Monday that briefly allowed the Trump administration to resume demands that election officials segregate ballots from suspected noncitizens under warnings of criminal prosecution, setting up another legal battle as voters headed to the polls on Tuesday.A majority of the active judges voted to rehear the dispute in front of a larger body of judges, otherwise known as en banc, undoing a divided three-judge panel’s decision issued hours earlier. The move restored restrictions imposed by U.S. District Judge Trina Thompson while the appeals court reconsiders the case.Chief Judge Mary Murguia, an appointee of former President Barack Obama, issued the late-night order, which expressly vacated the panel’s ruling. The order did not resolve the underlying dispute or set a date for rehearing, leaving the government without its requested relief heading into Election Day. The case centers on the Justice Department’s efforts to have election officials in California and Washington set aside ballots associated with people federal officials suspect are noncitizens until their citizenship can be verified.The DOJ maintains that it is enforcing federal prohibitions on noncitizen voting. Labor unions and civil rights organizations, including the NAACP, that filed suit on Oct. 29 contended that the administration is using prosecution threats to force changes to state election procedures and risks disenfranchising eligible voters.Thompson, a Biden appointee in the Northern District of California, issued a temporary restraining order the following day on an ex parte basis, without first giving the government an opportunity to respond. She concluded that the approaching election created a risk of immediate and irreparable harm before the government could be heard in opposition.The order restricted federal demands to remove registered voters, withhold ballots, or segregate or refuse to count ballots solely because federal officials alleged voter ineligibility. It also restricted related prosecution threats.Thompson concluded that the challengers were likely to succeed under the Voting Rights Act’s prohibition on intimidation and the Constitution’s allocation of election authority.The DOJ appealed, securing an initial victory Monday from Circuit Judges Carlos Bea and Consuelo Callahan, both appointees of former President George W. Bush. The judges concluded that the challenged requests and enforcement activities fell within executive authority and did not unlawfully displace state election procedures.Former Trump DOJ attorney Abhi Kambli, commenting on the panel’s ruling before it was vacated, argued that the challengers faced a threshold problem over whether private plaintiffs could sue under the Voting Rights Act provision they invoked.“For plaintiffs to bring this claim there would have to be an implied cause of action,” Kambli wrote on X, arguing that recognizing such a claim against the executive branch presented a particularly heavy burden.Notably, Thompson made the decision to rule last week in an ex parte fashion, meaning she decided before receiving the government’s reply arguments.“This case was pretty straight forward but the district court was in such a rush to enjoin that it did so ex parte,” he wrote.Murguia dissented from the panel’s initial ruling, arguing that the administration could not use the threat of prosecution to achieve changes it lacked authority to impose directly.“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,” she wrote.ELECTION LAWSUITS TO WATCH AS VOTERS HEAD TO THE POLLS TUESDAYThe subsequent vote to rehear the case erased the panel’s ruling favoring the DOJ. In the 9th Circuit, rehearing en banc ordinarily involves an expanded panel of 11 judges rather than every active judge.The reversal came after the Supreme Court separately rejected the DOJ’s emergency request on Monday to require California to segregate ballots associated with roughly 20,000 suspected noncitizens. That decision left the department without its requested emergency relief but did not resolve individual voters’ eligibility questions, nor did it dismiss the department’s underlying California lawsuit.