Judge’s order limits federal demands on election workers through Nov. 16, and the Justice Department appeals

A San Francisco federal judge temporarily barred the Justice Department and Homeland Security from threatening election workers with prosecution for counting ballots of voters the government flags as likely noncitizens, and the department, which says it is enforcing a federal ban on noncitizen voting, has appealed.

By Anjali Venkatram

Late Friday, U.S. District Judge Trina L. Thompson of the Northern District of California issued a temporary restraining order in Service Employees International Union v. U.S. Department of Justice (No. 3:26-cv-12800-TLT). It bars the Justice Department and the Department of Homeland Security from threatening or pressuring state and local election workers to stop processing ballots of registered voters solely because the government says those voters are ineligible. The order expires at 5 p.m. on Nov. 16.

The plaintiffs are two unions whose members include public employees, SEIU and the American Federation of State, County and Municipal Employees, along with the League of United Latin American Citizens and the NAACP. They filed suit on Thursday, Oct. 29, and Thompson ruled the next day, before the government had responded.

The government’s position

The Justice Department says it is enforcing the law. A 1996 statute, 18 U.S.C. § 611, makes it a crime for a noncitizen to vote in a federal election, and the department has argued in a separate case against California that once federal officials notify a state that specific registrants are likely noncitizens, state rules requiring workers to count those ballots must yield to federal law. “Federal law prohibits noncitizens from voting. Enforcing that law is not an agenda item. It is the Department’s job,” the department said in a statement reported by The Guardian.

The department has described its underlying request, that California set aside the mail ballots of more than 20,000 registrants flagged by federal immigration officials until their citizenship is verified, as modest. “No one who is legally allowed to vote would be impacted,” it wrote in an Oct. 19 filing, as The Inquirer reported last week. “After all, one vote cast by a noncitizen cancels one vote by an American.”

“The judge issued an order against the federal government without even waiting to hear from the United States, while in other cases the Department’s own urgent election claims are delayed by judges until after Election Day,” a spokesperson told CBS News on Saturday. “That is a two-track system of justice. The Department is reviewing the order and evaluating all options.”

In a court notice filed Friday night, the department said it would move to dissolve or modify the order or, in the alternative, appeal, and asked for an immediate decision. On Saturday it filed a notice of appeal to the Ninth Circuit. Neither filing argues the merits; the government’s written response is due by noon Monday.

What the order prohibits

Under the order, the departments, their officers and those working with them may not:

• threaten, intimidate or coerce election officials or workers to halt processing a registered voter’s ballot “solely on the basis that the ballot belongs to an individual alleged by Defendants to be ineligible to vote”;
• demand, on that basis alone, that officials remove specific voters from the rolls, refuse them ballots, or “segregate or otherwise not count” their ballots in the Nov. 3 general election;
• threaten workers with prosecution for refusing those demands, or for processing and counting ballots in compliance with state and federal election law.

The Justice Department must also tell every state, county or local government that received one of its letters that the demands and threats in it “have been enjoined,” and must inform the court of any pending search warrant applications, grand jury subpoenas or other demands for ballots or election materials tied to its lists of allegedly ineligible voters.

The key line: when workers process or count ballots “in the manner required by their state and federal laws,” Thompson wrote, “they do not violate federal criminal law even if a particular ballot belongs to a registered voter alleged by Defendants to be ineligible to vote.”

Why the judge ruled

Thompson found the plaintiffs likely to win on two grounds: Section 11(b) of the Voting Rights Act, which bars intimidating or threatening people who help others vote, and the Constitution’s Elections Clause, which she wrote leaves the mechanics of elections, including “counting of votes,” to the states.

The order recounts the plaintiffs’ allegations: that the Justice Department’s Oct. 23 letters to California counties, delivered by armed DHS officers, warned of prosecution for any worker who processed a ballot from a voter on the federal list, and that the department has opened a criminal investigation and issued grand jury subpoenas. Reuters has reported that some of the letters said officials who count such ballots could be treated as “aiders and abettors to a federal crime.” The government has not yet answered the allegations in this case.

“Although Defendants claim that their actions are designed to halt unlawful voting by noncitizens, their actions are likely to have the effect of interfering with election administration and disenfranchising lawful voters,” Thompson wrote.

Chris Geidner, a legal journalist who tracks the case, wrote that the order “is a very broad TRO” that he expects will face “some issues once DOJ is here.”

What it means for California on Tuesday

For county election offices, the order means federal officials may not press them to hold back flagged ballots before Tuesday’s vote. Contra Costa, Santa Clara and San Francisco were among the counties that received federal letters last month. Separately, a federal judge in Los Angeles on Oct. 28 rejected the department’s request to make Los Angeles County pull flagged ballots from processing, and news organizations including CBS News and The Guardian reported that a Ninth Circuit panel on Friday declined to order California to set them aside.

The order does not address prosecutions of individual voters. The Justice Department charged 28 lawful permanent residents in California with election-related crimes last month.

The government’s brief is due Monday at noon, the plaintiffs’ reply on Nov. 5, and a preliminary-injunction hearing is set for Nov. 13 at 11 a.m. in Thompson’s San Francisco courtroom, three days before the order lapses.