Reported / Citable
Background
In October 2026, federal officials sent letters to election officials in California and Washington asking them to review lists of registered voters the government believed were noncitizens and to segregate those voters' mail ballots, or hold them back from signature verification and tabulation, until citizenship could be determined. The letters also stated that an alien voting in a federal election is a federal crime and that knowingly facilitating such conduct is equally unlawful. The states refused, and on October 30 the Ninth Circuit in United States v. California declined to require California to adopt the requested process; the Supreme Court denied emergency relief on November 2.
Two labor unions and two membership organizations sued in the Northern District of California on October 29, alleging violations of Section 11(b) of the Voting Rights Act and the Elections Clause. On October 30 the district court entered an ex parte temporary restraining order, set to expire November 16, barring further ballot-sequestration requests and prosecution threats, requiring the government to tell letter recipients that the demands were enjoined, and requiring the Justice Department to inform the court of pending search warrant applications and grand jury subpoenas tied to lists of allegedly ineligible voters. The government appealed. A three-judge panel stayed the order on November 2, the court then vacated that stay, and on November 3 a majority of the en banc court reinstated it pending further order.
The Court’s Holding
The en banc order is brief: it reinstates the panel's stay, so the temporary restraining order is suspended while the appeal proceeds. The reasoning comes from the panel opinion by Judge Bea. It treated the order as reviewable like a preliminary injunction because it lasted seventeen days, compelled affirmative action, and would leave the government without meaningful interlocutory relief. It added that the district court could not shorten the order to fourteen days after the notice of appeal.
On likelihood of success, the panel concluded the government would probably prevail. Section 11(b) has no express private right of action and the statute vests enforcement in the Attorney General; the panel declined to imply a claim against the Executive, citing the presumption that 'person' excludes the sovereign and separation-of-powers concerns. It characterized sending letters, warning of federal law, and opening investigations as core Executive functions. On the Elections Clause, it reasoned that the government only requested sequestration, the states refused, and their authority was undisturbed; California decided whether states must adopt the process, while this case asks whether the government may ask.
The panel found the government irreparably injured by being barred from making its requests, and treated plaintiffs' fear of prosecution as speculative because any prosecution would supply a forum to raise defects. These are stay-stage predictions, not a final merits ruling.
Key Takeaways
- The decision is a stay pending appeal, not a vacatur or final judgment; the restraining order remains on the district court docket but is suspended, and the appeal remains pending.
- The panel's conclusion that private plaintiffs likely cannot invoke Section 11(b) against federal executive officers rests on the Attorney General's enforcement role and the presumption that 'person' excludes the sovereign.
- Judge Miller, joined by Judge Bennett, concurred, reasoning that a district court generally cannot enjoin the Justice Department from expressing views about criminal statutes even if those views are wrong, while noting that the government's positions may have little merit under California.
- Chief Judge Murguia, joined by four judges, dissented, arguing that California controls, that threats of prosecution are coercion rather than requests, and that the government can still investigate after the election; she also doubted the order was appealable.
- Judge Desai, joined by four judges, dissented separately, emphasizing the confusion caused by conflicting orders on Election Day under Purcell and suggesting the restraining order could have been narrowed instead.
Why It Matters
The order allows the federal government to resume ballot-segregation requests and accompanying warnings to election officials while the appeal is pending, unless the court orders otherwise. Because the panel addressed only likelihood of success, the Voting Rights Act and Elections Clause questions remain open, including whether prosecution threats attached to a request can coerce state election procedures, which the dissenters said California forecloses.
Nothing in the order decides whether the government's lists are accurate or whether any election official could lawfully be prosecuted. The opinions also reveal a sharp split among active judges over the Purcell principle and the handling of rapid, successive orders during an ongoing election. By its terms the restraining order would have expired November 16.