Judge Concedes 'Errors' in Order Barring DOJ From Warning Election Workers as Justice Department Seeks Emergency Ninth Circuit Stay
A federal judge in San Francisco has acknowledged "some errors" in her order barring the Justice Department and the Department of Homeland Security from threatening election workers with prosecution over ballots tied to suspected noncitizens, according to a court filing reviewed by The Digital Free Press, as the Justice Department asks an appeals court to put the order on hold before Tuesday's midterm elections.
In a Nov. 1 order, U.S. District Judge Trina L. Thompson wrote that she would "MODIFY" the temporary restraining order she issued on the evening of Oct. 30 "to correct errors, for clarity and to make a record for the parties." She set a hearing for Monday on the government's request to stay the order.
What the Judge Said Went Wrong
The 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. It was filed on Oct. 29, five days before the election, and the order was issued the next day, according to the court's own timeline.
Thompson listed three examples of errors. She wrote that the court issued its order "prior to all of Plaintiffs' exhibits being uploaded on the docket," granted relief under the Administrative Procedure Act "without including its analysis" of those claims, and set the order to expire after 17 days instead of 14.
The judge also asked both sides whether the order should be narrowed to the Northern District of California, to California, or to California and Washington. She asked the plaintiffs to identify the "particularized need" for language requiring the Justice Department to tell the court about "pending search warrant applications, grand jury subpoenas, or other demands to access election materials." She asked the government what evidence supported its claim that it had provided "credible evidence that certain ballots may be unlawful to count."
In the original order, as reported by Fox News, Thompson found the agencies likely violated the Voting Rights Act's ban on voter intimidation, writing, "One of the hallmarks of a fair election is the freedom to exercise the right to vote free from threat, fear, or intimidation."
DOJ: Order Was 'Wrong Multiple Times Over'
In an emergency motion filed Nov. 1 with the U.S. Court of Appeals for the Ninth Circuit, the Justice Department asked for an immediate administrative stay, a stay pending appeal and a writ of mandamus, and requested a ruling "no later than Monday, November 2."
"The district court was wrong multiple times over," the department wrote. It argued that the Voting Rights Act provision "has no private right of action, does not apply to the federal government, and is not violated by the Executive Branch's efforts to prevent and investigate violations of federal criminal laws." The filing said the order "would prohibit the federal government from acting even if a state or local election official brazenly encouraged hordes of noncitizens to vote," and that it improperly reaches grand jury material protected by federal rules.
In a statement to Fox News Digital, the department said the judge acted "without even waiting to hear from the United States," calling it "a two-track system of justice."
The Department of Homeland Security has publicly defended its effort to identify noncitizens on voter rolls. In a clip DHS posted on X on Oct. 31, DHS General Counsel James Percival said, "we've charged over 200 people."
Video: DHS General Counsel James Percival in a TV interview, via the Department of Homeland Security (@DHSgov) on X (file, Oct. 31, 2026)
What Happens Next at the Ninth Circuit
The Ninth Circuit ordered the plaintiffs to respond by 9 p.m. Pacific time on Nov. 1, and they filed their opposition that night. Two amicus briefs were filed Monday morning, according to the appeals court docket. As of publication, the docket showed no ruling on the stay request, and the district court had not yet issued its modified order.
The plaintiffs' claims have not been decided on the merits, and the order is temporary.
The Digital Free Press has reached out to the Justice Department for comment.
Sources: Order, "Questions for the Hearing," SEIU v. U.S. Department of Justice, No. 3:26-cv-12800-TLT (N.D. Cal., Nov. 1, 2026), and district court docket (https://www.courtlistener.com/docket/75045414/service-employees-international-union-afl-cio-v-united-states-department/); Defendants' emergency motion for administrative stay, stay pending appeal and petition for mandamus, No. 26-7303 (9th Cir., Nov. 1, 2026), and appeals court docket (https://www.courtlistener.com/docket/75054424/service-employees-international-union-et-al-v-doj-united-states/); Fox News, "Federal judge blocks Trump DOJ's threats against election workers ahead of 2026 midterms" (https://www.foxnews.com/politics/federal-judge-blocks-trump-doj-threats-against-election-workers-ahead-2026-midterms); Department of Homeland Security post on X, Oct. 31, 2026 (https://x.com/DHSgov/status/2116707494554742825).
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