Federal courts handed the Trump administration a string of election eve defeats late Monday, capped by a dramatic reversal at the 9th Circuit Court of Appeals. Observers on both sides struggled to keep up.
“With flurry of late night decisions, the Election Integrity Court Tracker is updated,” Just Security, the law and policy journal at New York University School of Law, posted at 1:13 a.m. Eastern time.
The night’s whiplash came in a case over Justice Department threats to prosecute election officials. On Oct. 30, U.S. District Judge Trina Thompson of San Francisco issued a temporary restraining order. It bars DOJ and the Department of Homeland Security from coercing election officials into halting ballot processing, from demanding that ballots of voters the government claims are ineligible be segregated or left uncounted, and from threatening officials with prosecution for counting ballots lawfully.
On Monday, a divided 9th Circuit panel paused Thompson’s order. Judges Carlos Bea and Consuelo Callahan, both George W. Bush appointees, held that Section 11(b) of the Voting Rights Act does not give private groups the right to sue, according to Just Security’s tracker. Chief Judge Mary Murguia, an Obama appointee, dissented. Just Security reported that a judge “immediately called for an en banc vote.”
The administration’s allies celebrated.
“The TRO issued by a San Francisco judge purporting to restrict DOJ investigations into election officials has been appropriately lifted. Conducting criminal investigations is a core function of the executive branch, not the judiciary,” wrote Bill Essayli, the first assistant U.S. attorney for the Central District of California.
Abhi Kambli, a former Trump Justice Department official who is now a partner at the law firm Holtzman Vogel, wrote, “Sanity prevails at CA9, if only barely, in preventing an overbroad ex parte TRO from NDCA stand.”
Katy Grimes, editor of the conservative California Globe, called the ruling “important.” She wrote that “the stay lets the administration resume the requests, warnings of potential prosecution, and related investigative steps while the appeal proceeds.”
The win didn’t last. “Minutes later the Ninth Circuit voted to review en banc (by the full Court) the panel decision in SEIU v DOJ, and thereby vacated the panel decision,” Just Security wrote.
Murguia’s order said that “upon the vote of a majority of nonrecused active judges,” the case would be reheard by the full court. It added that the panel’s order “is vacated.” Thompson’s order is back in effect, and it is set to expire Nov. 16.
“JUST IN: The full bench of the 9th Circuit has restored Judge Trina Thompson’s order that barred the Justice Department from coercing state election officials with threats of prosecution,” Politico senior legal affairs reporter Kyle Cheney posted at 1:44 a.m. Eastern.
“11:00 p.m. on the West Coast — and still more big news on the eve of Election Day,” wrote Brett Stover, a California reporter for FOX40.
“What is this process?! What dictates a 3 judge panel vs a ‘full bench’ decision?! At 11 pm pacific time!” wrote Jordan Crucchiola, director of consumer content at RSCL Films.
KIRO 7 political reporter Essex Porter in Seattle highlighted a passage from the panel ruling. It noted that the DOJ letters at issue were sent to election officials in California and Washington. “Every Big Story has a Pacific Northwest Connection…” he wrote.
The 9th Circuit fight was only one of the day’s rulings, according to Just Security’s tracker:
- Supreme Court: It denied DOJ’s emergency request to force California to segregate ballots from about 20,000 people the government claims are noncitizens.
- Judge Tanya Chutkan: She barred DOJ and DHS from sending any more lists of suspected noncitizen voters to state and local election officials.
- Chief Judge James Boasberg (preliminary injunction): He granted an injunction ordering the government not to demand that California officials segregate ballots based on those lists. He held that the government’s “attempts to impose new procedures for counting ballots, through threats of criminal prosecution of state election officials, is unconstitutional.”
- Judge Reggie Walton: He denied the NAACP’s request for a restraining order against DOJ’s poll-monitoring program because of the government’s assurances. He also ordered DOJ to make sure its monitors are not law enforcement officers, are not armed and cannot make arrests.
Not every ruling went against the administration. Boasberg reportedly denied the Democratic Senatorial Campaign Committee’s request for emergency relief in a separate case, finding the committee lacked standing.
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