Legal News

A 9th Circuit panel let Trump's DOJ threaten election workers. Hours later, the full court undid it.

A majority of the court voted late Monday to rehear the case, voiding a 2-1 pause of the order that protects ballot counters.

Stock photo. Photo by Tiffany Tertipes on Unsplash

Late Monday, a three-judge panel of the U.S. Court of Appeals for the 9th Circuit voted 2-1 to pause a judge's order that bars the Trump Justice Department from threatening election workers with prosecution, CBS News reported. Before the night was out, a majority of the court's judges voted to rehear the case before an 11-judge panel, and that rehearing "voids that previous order," Bloomberg Law reported.

With the pause wiped out, the order protecting election workers stands as the polls open Tuesday.

What the order protects

U.S. District Judge Trina Thompson of the Northern District of California issued the temporary restraining order on Friday, Oct. 30. It bars the Justice Department and the Department of Homeland Security from actions that "threaten, intimidate or coerce state or local elections officials or workers" to demand they stop processing certain ballots, NBC News reported. Thompson wrote that "high-ranking DOJ and DHS officials have engaged in a campaign to intimidate, threaten, and coerce." She found the government likely violated the Voting Rights Act's ban on intimidating people who help others vote, CBS reported. The order runs through Nov. 16.

The NAACP, the League of United Latin American Citizens and labor groups including SEIU, the AFL-CIO and AFSCME brought the case, Democracy Docket reported. Those unions represent state and local election workers, the people counting ballots this week.

The 2-1 panel ruling

The panel majority, two judges appointed by George W. Bush, called the government's actions "core Executive functions that did not actually disturb the states' regulation of their own elections," CBS reported.

Judge Mary Helen Murguia, an Obama appointee, dissented. She wrote that the ruling "cannot be reconciled" with the 9th Circuit's earlier refusal to make California set aside about 20,000 ballots. "The Constitution's allocation of election procedures to the states is meaningless if Defendants can coerce states," she wrote.

What the threats looked like

The Justice Department sent letters to election officials in 57 of California's 58 counties, NBC reported. In one to San Bernardino County, First Assistant U.S. Attorney Bill Essayli asked officials to "segregate — not cancel" certain mail ballots and warned that "legal consequences for either facilitating or ignoring federal crimes are significant."

The department claims the voters behind those ballots are likely noncitizens. Courts haven't bought it. Independent checks found U.S. citizens on the department's list, and on Monday the Supreme Court rejected the department's bid to hold back California's 20,000 ballots in a one-line, unsigned order with no noted dissents, CBS reported.

What's next

The full-court rehearing will decide whether the administration can make these threats while ballots are counted. No date had been reported by Tuesday morning. Until then, an election worker who processes a lawful ballot is covered by Thompson's order through Nov. 16.

Read our earlier story on the Justice Department's appeal.