SAN FRANCISCO — Federal courts don't have the authority to restrict federal law enforcement agencies under the authority of the President of the United States from investigating potential illegal voting by noncitizens or from demanding state election officials not count potentially illegal ballots, a federal appeals court has ruled.
Very early in the morning on Nov. 3, a 6-5 majority of the U.S. Ninth Circuit Court of Appeals upheld a 2-1 ruling from a three-judge panel of the same court, issued just hours earlier, that had knocked down an order from a Biden-appointed federal district judge, seeking to bar the Trump administration from continuing to investigate potential noncitizen voting and to "threaten" California state election officials who have indicated they will count the potentially illegal ballots until at least two weeks after the 2026 midterm elections.
In the ruling, the Ninth Circuit majorities said U.S. District Judge Trina L. Thompson had overstepped her authority in imposing the order and had unconstitutionally barred the executive branch from acting within its constitutional role as a co-equal branch of the federal government.
In the case, a group of left-leaning organizations, including the Service Employees International Union (SEIU) and other unions representing government workers and activist groups including the NAACP, had sued the federal Justice Department and Department of Homeland Security. They asserted the agencies, under President Donald Trump, had violated the federal Voting Rights Act (VRA) and the U.S. Constitution's Elections Clause by demanding the states of California and Washington set aside ballots that may be cast by tens of thousands of voters the federal agencies had identified as noncitizens on the state's voter rolls.
They further asserted the federal agencies had overstepped by "threatening" election officials with potential prosecution as accessories to the alleged illegal voting should they count the ballots, even after federal officials warned them that the ballots could be illegally cast.
The unions and left-wing activist groups sought a court order blocking the federal government from continuing to communicate their demands to the state and local elections officials.
As support, they pointed to a ruling in favor of the state of California in a separate legal action, in which a judge decided the state election officials were not legally required to set aside the ballots, as the federal agencies demanded.
Judge Thompson then issued an order she described as a temporary restraining order, blocking the federal agencies from continuing with their investigations into potential illegal voting and from communicating further demands or "threats" to state and local election officials.
Thompson had grounded her ruling in a provision within the VRA which forbids any "person" from acting to "intimidate, threaten, or coerce ... any person for voting or attempting to vote ... (or) any person for urging or aiding any person to vote or attempt to vote... (or) any person for exercising any powers or duties" under the VRA.
However, the Ninth Circuit majorities said the judge improperly allowed the state and organizational challengers to seek such an injunction through a so-called "implied right of private action."
In the 2-1 ruling, the judges noted the VRA grants enforcement authority solely to the U.S. Attorney General, who leads the very Justice Department that is leading and defending the federal investigation into the potentially illegal voting.
"The more fundamental problem is that Plaintiffs' claim would require us to recognize an implied private cause of action against the Executive," wrote Judge Bea in the 2-1 majority opinion.
"The VRA's text, which prohibits conduct by 'person[s],' counsels against such a reading," they said, noting "longstanding" rules governing how to interpret U.S. laws dictate that any law that prohibits actions by a "person" does not include the government itself, unless lawmakers specifically include language saying so.
And no such language was included in the VRA, the majority said.
The 2-1 majority ruling was authored by Circuit Judge Carlos T. Bea and joined by Judge Consuelo M. Callahan. Both were appointed to the court by former President George W. Bush.
Ninth Circuit Chief Judge Mary H. Murguia dissented. And in a rare move, Murguia – an appointee of former President Barack Obama – moved the case to an immediate rehearing from a so-called "en banc" panel of 11 Ninth Circuit judges.
After initially setting aside the 2-1 panel ruling, however, a majority of the 11 judges decided to reinstate the ruling.
The 6-5 majority was decided ostensibly on party lines, as all six in the majority were appointed by President Trump or other Republican former presidents, and all five in dissent were appointed by Democratic former presidents Biden, Obama or Bill Clinton.
In dissent, Murguia again authored an opinion, asserting the majority's decisions had created "chaos and confusion" and left state election officials caught in a vise, as they must now decide whether to move ahead with state-ordered vote counting or abide by the demands of federal officials demanding they follow federal law concerning the potentially suspect ballots, under the threat of criminal prosecution.
Murguia and her fellow dissenters asserted the court, despite the lack of a right of private action within the VRA, should have instead opted for "alternative approaches" to resolving the litigation, potentially including an order that would have "narrowed the scope of the temporary restraining order to preserve the government's ability to conduct investigations, without allowing it to intimidate state election officials and interfere in the administration of an ongoing election."
