A campaign by the Trump Justice Department to put the screws to election officials over contested ballots was blocked in two different courts on the eve of Election Day. The 9th Circuit Court of Appeals’ active judges, by a majority, discarded a ruling that had left the DOJ at liberty to threaten local authorities with prosecution.
In an order on Monday, the court vacated a 2-1 panel decision that had stayed U.S. District Judge Trina Thompson’s restraining order and agreed to rehear the case en banc. Chief Judge Mary Murguia signed the order without offering any explanation. As voters head to the polls, Thompson’s order is once again in effect.
Thompson issued her order on Oct. 30 to prevent the DOJ and the Department of Homeland Security from compelling election officials to reject, set aside or segregate ballots solely on the grounds that the voter may be ineligible. It also bars the government from threatening prosecution for lawfully counting such ballots.
In her view, the threats likely violated the Voting Rights Act. “Free exercise of the right to vote is a core tenet of our democracy,” she wrote.
The suit was filed by the SEIU, AFSCME, LULAC and the NAACP in response to the DOJ’s attempt to have California officials set aside the mail ballots of some 20,000 individuals it says are not citizens. State officials say the list is unreliable and contest the number.
Bill Essayli, the chief federal prosecutor in Los Angeles, has warned that those who process a noncitizen’s ballot with full knowledge are “opening themselves to legal jeopardy.” The administration would have it seen as a matter of law enforcement. After Thompson’s ruling, a DOJ spokesperson said she had acted “without even waiting to hear from the United States.”
Thompson’s order holds until Nov. 16; another hearing is on the docket for the 13th.
The appeals court’s decision was not the end of a hard day for the department. On the same day in Washington, U.S. District Judge Tanya Chutkan stopped DHS and the DOJ from providing states with lists of putative noncitizen voters. She found the plaintiffs would likely prevail on their claim that the policy oversteps the government’s authority and breaches the Privacy Act.
According to her opinion, the lists are drawn from files on tens of millions of voters across at least 47 states, including Social Security numbers, party affiliation and dates of birth. The plaintiffs allege they contain many false positives. “Election day is tomorrow, and in many states voting is already underway,” Chutkan noted.
For now, the administration’s two-pronged approach of flagging voters and bearing down on the officials who count their ballots is at a standstill in different courts while millions of Americans vote in the midterms.
