Full appeals court to rehear case on Trump administration election worker threats

The full 9th U.S. Circuit Court of Appeals voted late Monday to rehear the Trump administration’s appeal of a lower court order that blocked it from threatening election workers with criminal prosecution if they do not set aside ballots suspected to have been cast by noncitizens.

The decision came hours after a divided three-judge panel lifted a restraining order issued by U.S. District Judge Trina Thompson, allowing the Justice Department to resume its demands to states.

Chief Judge Mary Murguia, an Obama appointee, wrote in a late-night order that the panel’s decision was vacated after a majority of the court’s nonrecused active judges voted to rehear the case en banc.

Two labor unions and political interest groups sued the Trump administration last week after the Justice Department sent letters to California and Washington requesting the states check their voter rolls for potential ineligible voters and sequester those mail ballots until citizenship status can be verified. One of the letters sent to Los Angeles officials warned of “significant federal scrutiny and legal exposure” if they did not comply.

The challengers accused the administration of unlawfully trying to interfere with the midterm elections by attempting to coerce election officials with threats, arguing it could disenfranchise lawful voters.

Appeals Court Judges Carlos Bea and Consuelo Callahan, both George W. Bush appointees, found that the government was likely to succeed on the merits. The judges wrote in a majority opinion that the Justice Department’s actions fell within the scope of “core Executive functions” that did not “actually disturb” the states’ constitutional right to administer their elections or violate federal voting rights law.

“We therefore decline Plaintiffs’ invitation to read the VRA [Voting Rights Act] as rendering the Executive’s exercise of those functions as unlawfully intimidating, threatening, or coercive,” the seven-page majority opinion read.

Murguia dissented, writing that the majority’s holding in the case “cannot be reconciled” with an earlier 9th Circuit decision that rejected the Trump administration’s bid to set aside 20,000 California ballots. The chief judge wrote that the executive branch had “no right” to dictate election procedures to the states.

“And if Defendants cannot dictate these procedures directly, then they likewise cannot dictate them by subjecting vulnerable election workers to baseless—but chilling—threats of federal prosecution,” the judge wrote. “The Constitution’s allocation of election procedures to the states is meaningless if Defendants can coerce states into foregoing their chosen procedures by abusing their prosecutorial powers.”

The Supreme Court earlier on Monday turned away the Trump administration’s emergency request to segregate the California ballots.