By Claire Whitcomb
WASHINGTON — Two days before Election Day, the Justice Department is asking an appeals court to lift a federal judge’s order that bars the Trump administration from pressuring local election officials to set aside ballots it says were cast by noncitizens.
U.S. District Judge Trina Thompson, who sits in Northern California, issued the eight-page temporary restraining order Friday. It bars the departments of Justice and Homeland Security from taking any action that may “threaten, intimidate or coerce state or local elections officials or workers to demand that they halt processing the ballots of any registered voter solely on the basis that the ballot belongs to an individual alleged by [the administration] to be ineligible to vote,” NBC News reported.
The department appealed to the 9th U.S. Circuit Court of Appeals on Saturday. NBC reported that the order runs through Nov. 16, nearly two weeks after Tuesday’s election. Democracy Docket, which covers voting litigation, reported that the order appears to apply nationwide.
What the judge found
Thompson, a Biden appointee, wrote that top officials at both departments had gone after the people who run elections.
“In the lead-up to the election, high-ranking DOJ and DHS officials have engaged in a campaign to intimidate, threaten, and coerce state and local officials and employees who are engaged in administering the ongoing midterm 2026 election,” she wrote.
She said the administration’s stated goal does not change the likely effect. “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.
She also explained why she did not wait. “Ballots have already been issued. Americans have already begun voting. Workers have already begun processing ballots. Given the consequences of inaction, the Court sees no reason to delay its ruling,” she wrote.
The NAACP, the League of United Latin American Citizens and several unions, including the Service Employees International Union, the AFL-CIO and the American Federation of State, County and Municipal Employees, filed the suit Thursday. Some of those unions represent election workers.
The administration’s side
The Justice Department says it is enforcing a clear 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 on its noncitizen voting efforts, quoted by {a(GU,’The Guardian’)}.
A DOJ spokesperson told CBS News that the judge acted too quickly, and unevenly. “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,” the spokesperson said. “That is a two-track system of justice. The Department is reviewing the order and evaluating all options.”
The letters behind the case
Last week the department sent letters to election officials in 57 of California’s 58 counties, telling them to cooperate with its investigations into alleged illegal voting or face investigation themselves, NBC reported.
In a letter to San Bernardino County dated Oct. 22, First Assistant U.S. Attorney Bilal Essayli attached a list of what he called “1133 likely aliens” registered to vote there.
“For individuals whom citizenship status cannot be confirmed, we request that you immediately instruct the appropriate elections official to segregate — not cancel — those individuals’ vote-by-mail ballots until their citizenship status can be determined,” Essayli wrote. He said the list came from a “multilayered, multiagency investigative methodology” by DHS and warned that the “legal consequences for either facilitating or ignoring federal crimes are significant.”
The suit also pointed to letters that Harmeet Dhillon, who heads the department’s Civil Rights Division, sent to all 50 states and Washington, D.C., in July warning that local election officials could be prosecuted, CBS reported.
A string of losses in court
Thompson’s order is the first to formally bar the threats, Democracy Docket reported, though other judges have told the department to back off.
The department has lost repeatedly in California this week, NBC reported. On Monday a federal appeals court denied its bid to block more than 20,000 ballots from being counted. On Wednesday a federal judge wrote that its request to set those ballots aside “violates longstanding constitutional principles.” And on Friday an appeals court refused to force California officials to segregate them. The department has made similar demands of officials in Washington state.
On Friday the department also asked a judge to order Alaska to preserve and set aside ballots possibly affected by voter confusion in the state’s Senate race, where two candidates have nearly identical names. The same day it sent every state’s chief election official a letter telling them to preserve ballots and other records, warning that willful violations of federal record-keeping law can carry criminal penalties, Democracy Docket reported.
What it means here
Early voting in New York ends Sunday. On Tuesday, polls are open from 6 a.m. to 9 p.m.
Noncitizen voting in federal elections is already a federal crime. The department says it is only asking officials to help enforce that law. The groups that sued say the letters scare the local workers who count the votes. For now, the 9th Circuit will decide whether Thompson’s order stands through Election Day.
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