Ninth Circuit rules DOJ can request to sequester potentially fraudulent, non-citizen ballots in California, Washington

The ruling follows numerous attempts by California to block the DOJ’s efforts to prevent tens of thousands of potential non-citizens from voting in the election.

The en banc ruling reinstated a 2-1 panel decision issued on Monday night, in which the majority ruled in favor of the Justice Department and its requests to sequester non-citizen ballots. That 2-1 panel decision was vacated hours later after the full Ninth Circuit voted to hear the case en banc at the request of Chief Judge Mary Murguia, who had dissented.

The 2-1 panel majority, Judges Carlos T. Bea and Consuelo M. Callahan, stayed a temporary restraining order (TRO) issued by the US District Court for the Northern District of California. Both judges were appointed by President George W. Bush.

The TRO prohibited the DOJ and Homeland Security from ordering state and local election officials to suspend processing, segregate, or refuse to count ballots for voters whom the government claimed were likely non-citizens until citizenship was proven. The order also barred the DOJ from threatening election officials with criminal liability. The plaintiffs in this action were SEIU, AFSCME, LULAC, and the NAACP.

The majority maintained that the government’s actions are core executive functions under the Take Care Clause and do not violate the Voting Rights Act, in which the plaintiffs had alleged unlawful intimidation.

The Ninth Circuit found that the government was likely to succeed on the merits and suffer irreparable harm, with Judge Bea writing, “The Government’s injury—being barred from requesting that the states segregate ballots from suspected non citizens—cannot be undone after the fact.”

“Absent a stay, the Government will be irreparably injured,” the opinion reads. “At most, Plaintiffs fear a possibility of a future prosecution. If such a prosecution is ever brought, the prosecution itself supplies the means by which any defect, vindictiveness included, can be raised and remedied.”

According to the decision, states can still decide to refuse the requests, but such refusal could come with potential criminal liability.

Chief Judge Murguia, appointed by President Bill Clinton, argued in her dissent that the DOJ was not making basic requests, but rather using intimidation and coercive threats to interfere with the state’s elections. She wrote: “If Defendants lack the authority to directly compel state election officials to implement their preferred state elections procedures, it is difficult to imagine how Defendants may indirectly coerce state election officials to disregard state eligibility procedures through threat of prosecution.”

The decision came after the US Supreme Court declined to intervene in the case.

The Ninth Circuit ruling also applies to the state of Washington, in which the DOJ sent election officials a similar letter last week, requesting the sequestration of more than 400 likely noncitizen ballots.

Washington Democrat Secretary of State Steve Hobbs said the state would not comply with the demand. Hobbs later admitted that Washington state does not have the tools to verify citizenship.

DOJ officials anticipated that the number of noncitizen ballots cast in the state would be in the thousands, and the 400 figure was derived from a small sample.