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The Ninth Circuit produced a legal blink-and-you-miss-it this week. A three-judge panel briefly lifted a lower court order that had blocked the Justice Department from asking states to set aside ballots it says were cast by noncitizens. Hours later the full Ninth Circuit stepped in, vacated that panel decision, and ordered an 11-judge en banc rehearing — leaving the district judge’s temporary restraining order in place while the bigger court sorts it out.
Ninth Circuit flip-flops: stay granted, then vacated
Here’s what happened in plain terms. U.S. District Judge Trina L. Thompson had issued a TRO that barred the Justice Department and DHS from demanding that state or local officials remove registered voters, sequester ballots, or refuse to count ballots solely because the federal government said the voters might be noncitizens. The TRO also stopped the government from threatening criminal penalties tied to those demands.
A three-judge Ninth Circuit panel — with Judges Carlos T. Bea and Consuelo M. Callahan in the majority and Chief Judge Mary H. Murguia dissenting — briefly stayed the TRO, saying the government had shown it was likely to win on the argument that warning states and investigating suspected crimes are “core Executive functions.” That panel opinion was posted. Then the full court voted to rehear the issue en banc, vacating the panel’s stay and keeping the TRO alive for now.
What’s at stake: ballots, threats, and election day chaos
The practical effect is immediate. Because the en banc vote restored the TRO, election officials in states like California and Washington can continue to process ballots without following the federal letters’ demands to segregate or set aside votes flagged as “likely” noncitizen. That matters. Ballot processing was already underway, and threatening local officials with criminal charges on the eve of an election risks chilling lawful officials and confusing voters.
The government says it is enforcing federal criminal laws against noncitizen voting — an enforcement job the executive branch is supposed to do. That is a fair point. But courts must also protect voters from being wrongly silenced. The en banc court will decide whether federal threats, investigations, or letters can force states to change their routine ballot rules at the last minute.
Data accuracy and the danger of wrongful disenfranchisement
There’s another problem nobody should pretend is small: accuracy. Independent analysts and state filings show big mismatches between the Justice Department’s list and state voter rolls. One analysis found over 40 percent of names flagged for California didn’t match the state’s records. If the federal government is going to ask states to throw ballots into a pile, it must get the facts straight first.
So the real legal questions for the en banc Ninth Circuit are clear: can the federal government use criminal enforcement to override state ballot rules; do those warning letters cross the line into illegal intimidation under the Voting Rights Act; and how should courts weigh the need for law enforcement against the risk of disenfranchising lawful voters? All of those are weighty questions that deserve a careful answer, not a headline-ready sprint.
A simple demand for common sense from both sides
Here’s a modest proposal worth shouting about from the rooftops: if you want to pull ballots aside, bring data that won’t embarrass you in court. If you care about enforcing the law, do it in a way that doesn’t trample on citizens’ rights or freeze election officials with fear. The en banc Ninth Circuit should move quickly, but thoughtfully. Voters deserve both election integrity and fair treatment. Washington and the courts should stop playing procedural ping-pong long enough to deliver that.
