9th Circuit hits Trump with late-night ruling barring threats against election officials

Late Monday, hours before polls opened, the full 9th Circuit Court of Appeals wiped out a ruling that had freed the Justice Department to pressure election officials over ballots it suspects were cast by noncitizens.

Chief Judge Mary Murguia issued the order, which said that “upon the vote of a majority of nonrecused active judges,” the case “be reheard en banc.” The order vacated a three-judge panel ruling issued earlier that day, Nov. 2.

Politico senior legal affairs reporter Kyle Cheney broke the news at 10:44 p.m. Pacific time, or 1:44 a.m. Eastern on Election Day.

“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,” Cheney wrote. “A 2-1 panel ruling halting Thompson’s order is no longer in effect.”

The move brings back a temporary restraining order issued Friday by U.S. District Judge Trina Thompson of the Northern District of California. It bars DOJ from threatening election officials with prosecution.

In the panel ruling, Judges Carlos Bea and Consuelo Callahan, both appointees of President George W. Bush, found that DOJ’s letters to states were not “coercive,” Cheney reported. They also found that the Trump administration was likely to show Thompson’s order violated the separation of powers. Murguia, an Obama appointee, dissented.

The suit 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. They are suing DOJ, Attorney General Todd Blanche, the Department of Homeland Security and DHS Secretary Markwayne Mullin.

Thompson’s order bars the federal government from intimidating, threatening or coercing state and local election officials over ballots from voters it claims are ineligible. It also bars the government from demanding that those ballots be halted, segregated or left uncounted based solely on those claims, and from threatening prosecution when officials refuse.

“Free exercise of the right to vote is a core tenet of our democracy,” Thompson wrote. She added that election workers who process ballots as the law requires “do not violate federal criminal law.”

The case arose after DOJ threatened to prosecute California election officials if they processed up to 20,000 ballots it claimed came from likely noncitizens, according to Democracy Docket. DOJ made similar demands in Washington state. It also sent letters to election officials in all 50 states warning of possible criminal penalties for violating federal record-keeping law.

The order capped a string of election eve losses for the administration. Earlier Monday, the Supreme Court refused DOJ’s emergency request to force California to set aside the ballots. U.S. District Judge Tanya Chutkan barred DHS and DOJ from sending any more lists of suspected noncitizen voters to state and local officials.