Unreported / Non-Citable
Background
According to the record before the court, the Department of Homeland Security directed ICE in June 2026 to pursue stricter penalties against noncitizens believed to have registered or voted improperly, and in August 2026 launched what the order calls the Unlawful Voter Initiative. Under it, USCIS builds target lists for investigation by ICE's Homeland Security Investigations (HSI). An August 31 Surge Initiative Guidance told HSI to prioritize field investigations about voter eligibility in California, Connecticut, Georgia, Missouri, Nevada, New York, Pennsylvania, Washington, and Wisconsin. Plaintiffs identify two practices. The Voter Eligibility Matching Policy compiles lists from voluminous, unreliable data, including tens of millions of voter-roll and commercial records, and USCIS acknowledges errors from similar names and outdated records. The Field Operations Policy deploys HSI officers for field interviews, and DHS publicized arrests and operations on social media in the months before the midterm elections.
The California Nurses Association and National Nurses United (CNA/NNU), the City and County of San Francisco, the County of Santa Clara, and Voto Latino Foundation sued on September 18, 2026, and moved for an APA stay and preliminary injunction. They pleaded seven claims: two under Section 11(b) of the Voting Rights Act, one under the constitutional right to vote, and four under the APA. CNA/NNU submitted declarations from at least four citizen members who feared being wrongly identified and investigated, and who stopped attending election events or declined to serve as poll monitors. The court heard the motion on October 19, 2026.
The Court’s Holding
Only CNA/NNU showed standing. The Local Government Plaintiffs offered educational costs and speculative erosion of community trust, which were not shown to be actual or imminent injuries. Voto Latino relied on diverted resources and cancelled events, a theory the en banc Ninth Circuit rejected in Arizona Alliance for Retired Americans. CNA/NNU established associational standing, but only for the Section 11(b) claim about intimidation affecting voter assistance and mobilization; members' plan to vote by mail was not shown to be a cognizable harm. The court therefore did not reach the other Voting Rights Act claim or the constitutional claim. It also did not reach the APA claims, because no discrete final agency action had been shown.
On the merits, the court concluded that Section 11(b) carries an implied private right of action and that its text, covering anyone whether acting under color of law or otherwise, reaches federal officers; the vacated Ninth Circuit decision defendants cited declined to decide that question. It found CNA/NNU likely to succeed because reliance on admittedly flawed data, armed field interviews shortly before an election, and publicized arrests produce an objectively reasonable fear that deters members from urging or aiding others to vote. The court rejected the argument that specific investigative statutes override the Voting Rights Act, and it stated that investigating unlawful voting by noncitizens is not itself unlawful. It found irreparable harm and found that the equities and public interest favor plaintiffs. It alternatively found serious questions on the merits with the balance of hardships tipping sharply toward plaintiffs.
The order enjoins Defendants and those acting in concert with them, in the nine Surge states, from conducting elections-related field operations and interviews that involve or are likely to involve persons they know, suspect, or reasonably should suspect are U.S. citizens. It also bars such operations against those persons based wholly on TECS records generated by the Voter Eligibility Matching Policy. It runs until November 3, 2026, at 8:00 p.m., or until polls close, unless the court directs otherwise. It was stayed until 5:00 p.m. on October 23, 2026, and dissolves unless a $100 bond was posted by October 22. The court also sealed the supplemental administrative record and the unredacted reply.
Key Takeaways
- Associational standing rested on members' concrete fear and withdrawal from election activity, while resource diversion and speculative local-government injuries were insufficient.
- The court held that Section 11(b) of the Voting Rights Act supports a private action and can reach federal officers' conduct.
- The injunction is limited to field operations touching known or suspected citizens and operations resting wholly on TECS records; lawful investigation of noncitizen voting is not barred.
- This is a preliminary ruling on likelihood of success, the remaining claims were not decided, and the order was set to expire when Election Day polling closed.
Why It Matters
This district court order is not a final judgment and was designed to operate only through the 2026 election. It treats federal investigative practices as potential voter intimidation under Section 11(b) while preserving the government's ability to investigate noncitizen voting, and its standing analysis narrows which plaintiffs can sue. The constitutional and APA claims remain unresolved.