President Trump’s Justice Department received an Election Day victory Tuesday from the Ninth Circuit Court of Appeals in its fight over alleged non-citizen voting in California. The court’s full slate of judges voted 6-5, en banc, to reinstate an earlier ruling that lifted restrictions on the administration’s requests involving suspected non-citizen ballots.
The practical result, according to the court’s order, is that federal officials can again ask state election officials to set aside suspect ballots and warn officials who decline that they could face prosecution. That is a significant development for the DOJ, especially after the court spent the previous several hours changing direction like a legal weather vane in a hurricane.
On Monday night, a three-judge panel briefly lifted a block on the Trump Administration’s efforts to investigate alleged voting by noncitizens in California. The panel granted the Justice Department’s request to pause a temporary restraining order issued by a San Francisco federal judge.
That restraining order had barred the administration from making further requests to set aside ballots while warning state and local election officials who declined those requests about possible prosecution. The three-judge panel said the government was likely to prevail in arguing that its requests and criminal investigations were “core executive functions.”
Then came the judicial whiplash. Hours later, the full Ninth Circuit vacated the panel’s ruling and ordered the dispute reheard by all 11 active judges. That move restored the district court’s restrictions while the entire court considered the case. In plain English, the ruling that had opened the door was temporarily put back behind it.
Tuesday’s 6-5 en banc vote changed the situation again. The full court reinstated the earlier decision lifting restrictions on the Trump DOJ’s efforts to have states set aside suspected non-citizen ballots. The ruling marked the court’s third decision in roughly 12 hours, which is an impressive amount of legal motion for a single dispute and not exactly a model of calm deliberation.
The case concerns what federal investigators and state election officials may do when ballots are suspected of being connected to non-citizen voting. The latest order does not erase the disagreement surrounding the issue, as the narrow 6-5 vote demonstrates, but it does restore the administration’s ability to make the requests and issue warnings about potential prosecution.
SCOTUS Wire summarized the ruling in a post shared Tuesday:
For now, the Ninth Circuit’s latest ruling gives President Trump’s Justice Department the authority to resume its requests while the dispute continues through the court process.
