The Trump administration can again direct election officials to hold aside ballots suspected of being cast by noncitizens, following a split decision from the Ninth Circuit on Election Day.
Last month, the Justice Department and Department of Homeland Security warned election officials that counting ballots cast by suspected noncitizens could expose them to criminal liability. In California, the policy could affect about 20,000 mail-in ballots.
Labor unions and advocacy groups, including the Service Employees International Union and the NAACP, sued to stop the administration’s effort. On Friday, U.S. District Judge Trina Thompson, appointed by President Biden, temporarily barred the government from telling election officials nationwide to withhold those ballots. The order was set to remain in effect until Nov. 13.
A three-judge Ninth Circuit panel paused Thompson’s order on Monday, saying the government had shown “a likelihood of success on the merits.” The ruling was later vacated, however, and Chief Judge Mary Murguia ordered the full court to rehear the case. Murguia, an appointee of President Obama, was among the judges who disagreed with the outcome.
By a 6-5 vote, the full Ninth Circuit reinstated the earlier decision lifting the temporary restraining order. The administration may therefore resume asking state officials to set aside ballots suspected of being cast by noncitizens, and warning that officials who do not comply could face federal prosecution.
