Full Ninth Circuit Lets DOJ Resume Noncitizen Ballot Warnings

The full U.S. Court of Appeals for the Ninth Circuit on Tuesday cleared the Justice Department to keep asking election officials in California and Washington to set aside ballots from suspected noncitizens, and to keep warning them about federal law, according to an order filed by the court on Election Day.

A majority of the 11-judge en banc court voted to reinstate the three-judge panel’s Nov. 2 order, the Tuesday order states. That panel order had paused a temporary restraining order from U.S. District Judge Trina Thompson in San Francisco, which barred the administration from making further ballot-sequestration requests or what the judge called “threats” of prosecution, according to the court’s filing.

Breaking: Ninth Circuit en banc panel has ruled 6-5 to reinstate this decision after it was vacated last night.

This rules in favor of the DOJ. Prosecutors can continue requests to sequester noncitizen ballots and threaten prosecution. California and Washington state are back on… https://t.co/8iMKlFV1vi pic.twitter.com/gEUPg6ev7u

— Katie Daviscourt 📸 (@KatieDaviscourt) November 3, 2026

The ruling caps a whiplash 12 hours. The three-judge panel sided with the Justice Department on Monday, and late Monday night a majority of the court’s active judges voted to rehear the case and vacated that decision, according to a separate order signed by Chief Judge Mary Murguia. Tuesday’s order put the panel’s ruling back in force until the court says otherwise, according to the filing.

What the Justice Department did

The case began when two labor unions, the Service Employees International Union and AFSCME, joined by the League of United Latin American Citizens and the NAACP, sued the Justice Department and the Department of Homeland Security on Oct. 29, according to the panel order. They objected to letters federal officials sent to California and Washington asking state and county election officials to “sequester” ballots of voters the government believed were noncitizens.

The letters warned that a noncitizen voting in a federal election commits a federal crime and that knowingly facilitating it is also unlawful, according to the court record. Judge Thompson granted the restraining order on Oct. 30 and also required the government to tell every recipient that its demands had been enjoined, the panel order states.

Judges: enforcing the law is a core executive job

Judges Carlos Bea and Consuelo Callahan, both George W. Bush appointees, found the government was likely to win on the merits, The Hill reported. They wrote that the department’s actions fell within “core Executive functions” and declined to treat those functions as unlawful intimidation under the Voting Rights Act, according to the order.

Judge Eric Miller, joined by Judge Mark Bennett, concurred in Tuesday’s order. Miller wrote that a district court generally lacks the authority to bar the Justice Department from expressing its views about criminal statutes, even when the court believes those views are wrong, according to the filing. He also wrote that many of the government’s positions in its letters may not hold up under an earlier Ninth Circuit ruling.

Chief Judge Murguia and Judge Roopali Desai dissented, the order states. Murguia argued that the executive branch had “no right” to dictate election procedures to the states, The Hill reported.

California still refuses

The order does not force any state to set aside a single ballot. On Oct. 30, a separate Ninth Circuit panel voted 2-1 to reject the department’s bid to make California segregate ballots from more than 20,000 people federal officials flagged as likely noncitizens, NBC News reported. The Supreme Court declined to intervene in that case on Monday, the Associated Press reported, and California officials have refused the request.

What Tuesday’s order does is restore the Justice Department’s ability to press its case directly with election officials while ballots are counted. Election law scholar Rick Hasen wrote on Election Law Blog that the divided en banc court had again blocked the district court order that would have kept the department from making those demands.

For voters who want confidence that only citizens decide federal races, the ruling keeps the federal government in the conversation as California and Washington count mail ballots in the days ahead. The restraining order itself is set to expire Nov. 16, according to the court record, and the full court has not yet ruled on the merits.

Reporting by Daily Beltway.