The U.S. Court of Appeals for the 9th Circuit has reinstated a decision from three judges on the court that granted a Justice Department request to freeze a district court’s temporary restraining order. Under that order, the Trump administration could not request election officials set aside ballots returned from alleged noncitizens and threaten prosecution of those who fail to comply with the demand.The 9th Circuit has been at the center of several appeals involving the Trump administration’s efforts to force state and local election officials to separate mail ballots received from people that it alleges are not U.S.
citizens. The Justice Department had asked California to put to the side ballots from more than 20,000 alleged noncitizens and called for Washington’s secretary of state to sequester mail ballots returned by up to over 400 people it claims are not U.S. citizens.The Trump administration also said in letters to officials in the two states that “knowingly facilitating” voting by noncitizens is unlawful.Two labor unions, the NAACP and the League of United Latin American Citizens filed a lawsuit and secured an order from a federal judge that barred the Trump administration from making further demands for election workers to separate ballots and “threats” of prosecution.The Trump administration appealed to the 9th Circuit.
A panel of three judges sided with the Justice Department and agreed to freeze the district court’s decision. Then, a fuller complement of judges on the 9th Circuit set aside the ruling from the panel and reconsidered the issue.On Tuesday afternoon, the appeals court put the earlier order from their three colleagues back in place.Judge Eric Miller, joined by Judge Mark Bennett, said in a concurring decision that a district court does not “generally have the authority to enter an injunction prohibiting the Department of Justice from expressing its views about criminal statutes, even if the court determines that those views are incorrect.” Five of the judges dissented and said that election workers must now choose whether to refuse to set aside ballots cast by alleged noncitizens or risk prosecution.
