The Trump administration’s pre-election push to send Homeland Security agents after alleged illegal voters will stay frozen through Tuesday’s midterms. The full 9th Circuit Court of Appeals declined to reconsider a ruling that keeps the operation blocked.
The court issued its order late Friday. A judge on the court had asked on their own for a vote on whether to rehear the case “en banc,” before a larger panel of judges. Not enough judges voted to do so, which leaves in place a three-judge panel’s decision refusing to lift a lower court’s injunction against DHS’s so-called Unlawful Voter Initiative. Politico’s Josh Gerstein first reported the order.
Seven judges dissented: six Trump appointees and one George W. Bush appointee. Judge Eric Tung, a Trump appointee, wrote the dissent. He was joined by Judges Ryan Nelson, Daniel Collins, Daniel Bress, Patrick Bumatay and Lawrence VanDyke, all Trump appointees, and Consuelo Callahan, a Bush appointee.
Five other Trump appointees did not join the dissent, Gerstein noted, though their votes weren’t disclosed.
A federal judge in California blocked the initiative last week. Civic groups argued it was a thinly veiled effort to intimidate naturalized citizens, Politico reported. DHS agents in nine states had carried out street-level operations against people accused of voting or registering illegally. The administration paired those operations with a social media campaign showing armed, masked agents pulling people from their homes in handcuffs.
At a recent hearing, the three-judge panel was openly skeptical of the government.
“Isn’t part of this that the … surge has an aspect of it that seemingly actually wants to intentionally — is making an effort to instill fear?” asked Judge Kim Wardlaw, a Clinton appointee.
Judge Sidney Thomas, another Clinton appointee, questioned why the government needed the operation in the final days before the election.
“So, why’s the rush? … What are you prevented from doing in the next four days?” Thomas asked. “You can’t prosecute anybody in four days. You can’t convict them in four days. … Why do you need this?”
According to Politico, the judges said DHS had conceded it relied on faulty data to choose its targets and had specifically targeted naturalized citizens.
Justice Department attorney Gabriel Schonfeld argued that the government had a “serious interest, an irreparable one, to not be wrongfully enjoined in pursuing these sorts of crimes in the run-up to an election.”
The ruling is the latest legal setback for the administration’s election push. This week, a federal judge in Los Angeles also rejected the Justice Department’s demand that California set aside more than 20,000 ballots from voters it suspected of being noncitizens.
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