Reported / Citable
Background
In mid-October 2026, the Department of Justice sent letters to California and Los Angeles County officials asking them to review a list of roughly 20,000 registered voters whom federal agencies believed were likely noncitizens and to segregate, not cancel, those voters' ballots. Later letters, reproduced in the appendix, made similar requests of officials in Washington and Santa Clara County and stated that knowingly facilitating noncitizen voting is unlawful. The dissent adds that an earlier letter warned of aiding-and-abetting liability under 18 U.S.C. § 2, and it relays reports, which the majority does not address, that prosecutors were directed to pursue subpoenas of election officials.
Two labor unions and two political-interest groups then sued, alleging violations of Section 11(b) of the Voting Rights Act and the Elections Clause. On October 30 the district court granted an ex parte temporary restraining order, without a hearing or Government opposition. It barred further sequestration requests and prosecution threats, required the Government to tell letter recipients that the demands had been enjoined, and required DOJ to inform the court of pending search warrant applications and grand jury subpoenas concerning lists of allegedly ineligible voters. The order was to expire November 16. The Government appealed and sought a stay. The panel reviewed the order as it stood at the time of appeal, because the district court's later attempt to shorten it to fourteen days came after the notice of appeal and lacked jurisdiction.
The Court’s Holding
The panel granted the Government's motion for a stay pending appeal. It first concluded that the order, though styled a TRO, is reviewable as a preliminary injunction. The order lasts longer than fourteen days, requires mandatory action, and bars requests through Election Day, which could leave the Government unable to obtain meaningful interlocutory relief later.
On the merits, the panel found the Government likely to succeed. Section 11(b) has no express private cause of action, and the Voting Rights Act vests enforcement in the Attorney General. Implying a private action against the Executive would raise separation-of-powers concerns, the panel reasoned, particularly because writing to state officials, urging a policy, warning of federal law and instigating investigations are core Executive functions, and 'person' is presumed not to include the sovereign. On the Elections Clause, the panel reasoned that the letters were requests the states refused, so state authority was unaffected. It distinguished the earlier California decision as addressing whether a state must adopt the Government's process, not whether the Government may ask. The Government showed irreparable injury from being barred from making the requests, while the Plaintiffs feared only a possible future prosecution, in which any defect could be raised.
Chief Judge Murguia dissented. She viewed the ruling as irreconcilable with the California decision: if the Government cannot compel ballot segregation directly, it cannot do so indirectly by threatening election workers with prosecution. She would find no irreparable harm because the TRO leaves lawful investigations and post-election prosecutions open, and she invoked Purcell principles. She also doubted that a TRO issued without an adversary hearing was appealable.
Key Takeaways
- This is a published order on a stay motion. Its conclusions about likely success are preliminary, and the panel did not finally decide the Voting Rights Act or Elections Clause claims.
- The majority reasoned that private plaintiffs likely cannot enforce Section 11(b) against federal officials, citing the Attorney General enforcement scheme and the presumption that 'person' excludes the sovereign.
- A TRO may be reviewed as a preliminary injunction when it exceeds fourteen days, compels action, or would foreclose later interlocutory relief.
- The majority distinguished requests from compulsion, noting that the states retained authority to refuse. The dissent treated prosecution warnings as indirect coercion of state election procedures.
- The stay lifts the TRO's restrictions while the appeal proceeds, but the merits and any preliminary injunction remain undecided.
Why It Matters
The stay removes the district court's restrictions during the appeal, so the Government is no longer barred by the TRO from making ballot-sequestration requests and related communications. The majority stressed that states remain free to decline, and nothing in the order requires election officials to comply.
The majority's reasoning on implied private actions under Section 11(b) is published, though framed as likelihood of success. The Section 11(b) and Elections Clause merits, any preliminary injunction, and the dissent's coercion and Purcell concerns remain open in the continuing appeal and in the district court.