Full Ninth Circuit Restores Block on DOJ Ballot Requests After Panel Briefly Let Them Resume

Update (10:22 AM ET, Nov. 3): Hours after the panel's ruling, the full Ninth Circuit vacated it and ordered the case reheard en banc by an 11-judge court, restoring the district court's temporary restraining order while the full court considers the case.

A divided federal appeals court on Monday cleared the Justice Department to resume asking state and local election officials to set aside the ballots of suspected noncitizens, and to warn them about federal law, pausing a lower-court order that had barred both.

The 2-1 order from a Ninth Circuit panel, issued the day before the midterm elections, granted the department's request for a stay pending appeal of a temporary restraining order entered Oct. 30 by U.S. District Judge Trina L. Thompson in San Francisco. The Digital Free Press read the published order and the dissent.

What the Ninth Circuit Majority Said

Thompson's order, entered without a hearing, barred the department from making further ballot-sequestration requests and "threats" of prosecution, required it to tell every official who received its letters that the demands had been blocked, and required it to disclose pending search warrant applications and grand jury subpoenas tied to its voter lists. The suit was brought by two unions, the SEIU and AFSCME, along with the NAACP and the League of United Latin American Citizens.

Judge Carlos T. Bea, writing for himself and Judge Consuelo M. Callahan, said Thompson was "likely wrong" on both the Voting Rights Act and the Constitution's Elections Clause. The majority said the section of the Voting Rights Act the plaintiffs relied on gives enforcement power to the attorney general and does not clearly let private groups sue the executive branch.

Describing the conduct at issue, Bea wrote that "the Government delivered letters to state and local officials that requested that the states implement the Executive's preferred policy, warned those states of the strictures of federal law, and instigated investigations into suspected violations of that law. These are core Executive functions."

On the Elections Clause, the majority noted that the states refused the requests, so their authority over their own elections "is therefore unaffected." It said an earlier Ninth Circuit ruling against the department decided whether a state must adopt the procedure, while this case asks "only whether the Government can make such a request in the first place."

The panel also said Thompson lacked jurisdiction to change her order at a hearing Monday, after the government had already appealed.

The Dissent

Chief Judge Mary H. Murguia dissented. "Last Friday, we held that the United States has no authority to compel state elections officials to disregard their own lawful election procedures," she wrote. "Today, by contrast, we hold 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. These two decisions cannot be reconciled."

She quoted an Oct. 16 department letter to Los Angeles County officials: "If persons knowingly tabulate ballots cast by individuals identified by federal agencies as noncitizens, they risk becoming aiders and abettors to a federal crime."

What Happens Now

That panel order has since been vacated; the district court's temporary restraining order is back in effect while the full Ninth Circuit rehears the case. The panel's now-vacated order does not require any state to set aside ballots. California has refused, and the Supreme Court on Monday denied the department's emergency request to force it to, without dissent, according to the dissent and the court's docket.

The same day, in Washington, Chief U.S. District Judge James E. Boasberg reached a different conclusion in a separate case, finding the executive branch likely violated the Elections Clause and barring the department from issuing such demands to California officials.

Seeing election problems at your polling place? Contact The Digital Free Press at tips@thedigitalfreepress.com.

Sources: Order, Service Employees International Union v. U.S. Department of Justice, No. 26-7303 (9th Cir.), Nov. 2, 2026, with dissent (https://cdn.ca9.uscourts.gov/datastore/opinions/2026/11/02/26-7303.pdf); Order, SEIU v. U.S. Department of Justice, No. 3:26-cv-12800 (N.D. Cal.), Dkt. 63, Nov. 2, 2026 (https://storage.courtlistener.com/recap/gov.uscourts.cand.482447/gov.uscourts.cand.482447.63.0_1.pdf); Supreme Court docket, United States v. California, No. 26A624 (https://www.supremecourt.gov/search.aspx?filename=/docket/docketfiles/html/public/26a624.html); Memorandum Opinion, Coalition for Humane Immigrant Rights v. Department of Homeland Security, No. 1:26-cv-03072 (D.D.C.), Dkt. 48, Nov. 2, 2026 (https://storage.courtlistener.com/recap/gov.uscourts.dcd.296136/gov.uscourts.dcd.296136.48.0_2.pdf); En banc order, Service Employees International Union v. U.S. Department of Justice, No. 26-7303 (9th Cir.), Nov. 2, 2026 (https://cdn.ca9.uscourts.gov/datastore/opinions/2026/11/02/26-7303_31_order.pdf); Eric Mack, "9th Circuit block on California noncitizen voter probe lifted, then restored in legal boomerang," Fox News, Nov. 3, 2026 (https://www.foxnews.com/politics/9th-circuit-block-california-noncitizen-voter-probe-lifted-restored-legal-boomerang). Cover photo: "U.S. Post Office & Courthouse (San Francisco)," home of the Ninth Circuit, by Sanfranman59, CC BY-SA 4.0, via Wikimedia Commons.