ELECTION DAY WHIPLASH: Ninth Circuit Restores DOJ Power to Flag Suspected Noncitizen Ballots

This article has been updated with reactions from public officials. 

In a 6-5 vote Tuesday, an 11-judge en banc panel of the Ninth Circuit Court of Appeals reinstated an earlier three-judge panel order that lifts a district court’s temporary restraining order restricting the Department of Justice from requesting that states sequester ballots cast by suspected noncitizens and from warning election officials that knowingly counting unlawful ballots could result in federal prosecution. 

The decision marks the court’s third major ruling on the matter in roughly 12 hours on Election Day, underscoring the rapid back-and-forth in the Trump administration’s ongoing effort to enforce federal prohibitions on noncitizen voting.

The reinstated stay allows the DOJ to continue asking California and other state officials to set aside ballots tied to individuals flagged as likely noncitizens, based on federal data-matching, while citizenship is verified. It also permits warnings that knowingly tabulating such ballots could expose officials to prosecution under federal law, including aiding-and-abetting liability. 

States are not compelled to comply with the requests. 

The order further suspends certain prior requirements that the administration disclose pending warrants and grand jury subpoenas related to allegedly ineligible voters and notify officials of the district judge’s earlier restrictions. 

Five judges dissented. Chief Judge Mary H. Murguia, an Obama appointee, argued that threats of prosecution leave election officials facing conflicting legal obligations under state procedures and federal law. Judge Roopali Desai warned that the court’s rapidly changing orders, issued on Election Day, risk confusion and potential disenfranchisement of eligible voters.

The panel majority, writing through Judge Carlos Bea and joined by Judge Consuelo Callahan, both appointed by President George W. Bush, concluded that the government was likely to succeed on the merits and that the district court was “likely wrong” when it blocked the Department of Justice from asking states to set aside ballots from people flagged as possible noncitizens and from warning officials that knowingly counting illegal ballots could be a federal crime. 

The judges said the DOJ requests to sequester ballots, warnings about federal law, and related investigations, are “core Executive functions.” They explained that “Congress cannot be lightly presumed to have imposed new liability” on the Executive for carrying out those core functions.

The majority further found that the requests did not force states to change their own election rules under the Elections Clause and that the district court’s temporary restraining order therefore improperly restrained the Justice Department’s authority. The majority determined that the government would suffer irreparable harm if barred from making the requests, because that injury could not be fixed later, while any future prosecutions could still address problems if they arise. The remaining factors, including the public interest, favored the government.

The full en banc order and attached panel opinion are available on the court’s docket and attached below.

This article will be updated with any reactions from public officials. As of publication, neither the Department of Justice nor California officials have released statements specifically addressing the 6-5 decision.

Update: First Assistant U.S. Attorney Bill Essayli responds:

The rule of law prevails. Separation of powers does not allow judges to take control of core executive branch powers. We will conduct our criminal investigations without fear or favor. https://t.co/g2JDVpnrdV

— F.A. United States Attorney Bill Essayli (@USAttyEssayli) November 3, 2026