Background
On October 29, 2026, two labor unions and two political-interest groups sued the Department of Justice, the Department of Homeland Security, the Attorney General, and the Secretary of Homeland Security. The plaintiffs alleged that federal officers violated the Voting Rights Act and the Constitution’s Elections Clause by sending letters to California and Washington election officials requesting that they “sequester” ballots cast by voters the government believed to be noncitizens. The letters warned that “[a]n alien voting in a federal election is a federal crime—and knowingly facilitating such conduct is equally unlawful.”
The plaintiffs filed an ex parte motion for a temporary restraining order to enjoin the government from making further ballot-sequestration requests or threats of prosecution. The district court granted the motion on October 30, 2026. By its terms, the TRO would expire on November 16, 2026, seventeen days after entry. It barred the government from making further ballot-sequestration requests and threats of prosecution, required the government to inform letter recipients that the demands had been enjoined, and required DOJ to disclose pending search warrant applications and grand jury subpoenas pertaining to lists of allegedly ineligible voters. The government appealed and moved for an immediate administrative stay and a stay pending appeal.
The Court’s Holding
The Ninth Circuit granted the government’s motion for a stay. The court first held that it had jurisdiction under 28 U.S.C. § 1292(a)(1) because the TRO, though styled as temporary, had the practical effect of a preliminary injunction: it lasted seventeen days (beyond the default fourteen), required mandatory action by the government, and barred ballot-sequestration demands until and beyond Election Day, effectively foreclosing later interlocutory relief.
On the merits, the court concluded the government was likely to succeed. Regarding the VRA claim, the court noted that Section 11(b) contains no express private cause of action and that the statute’s text vests enforcement authority in the Attorney General. The court also cited separation-of-powers concerns, observing that the conduct at issue—delivering letters requesting state implementation of preferred policies, warning of federal legal strictures, and instigating investigations—constituted core Executive functions that Congress could not lightly be presumed to have subjected to liability.
Regarding the Elections Clause claim, the court distinguished its recent decision in United States v. California, which held that the United States could not compel states to adopt ballot-sequestration procedures. Here, the court explained, the question was whether the government could make such a request in the first place, not whether it could compel compliance. Because the states retained their constitutional authority to regulate elections and had refused the requests, the court found the government likely could make the requests as a core Executive function. The court also found the government would be irreparably injured absent a stay, while the plaintiffs faced at most a possibility of future prosecution that could be remedied in the ordinary course of litigation.
Key Takeaways
- A TRO lasting seventeen days, requiring mandatory government action, and effectively foreclosing later interlocutory relief is reviewable as a preliminary injunction under 28 U.S.C. § 1292(a)(1).
- Section 11(b) of the Voting Rights Act does not contain an express private cause of action, and courts are reluctant to imply one against the Executive for core functions like investigating election crimes and communicating with state officials.
- The Elections Clause prevents the federal government from compelling states to adopt specific election procedures, but it does not necessarily bar the Executive from requesting state cooperation or warning of federal legal requirements.
- Chief Judge Murguia dissented, arguing that the majority’s decision could not be reconciled with United States v. California and that the government was improperly attempting to coerce state officials through threats of prosecution.
Why It Matters
The decision clarifies the line between permissible Executive requests and unconstitutional commandeering of state election administration. By treating the TRO as a reviewable preliminary injunction, the court also provided guidance on when temporary orders that extend beyond fourteen days or impose affirmative obligations may be appealed immediately. The dissent highlights ongoing tension within the circuit regarding federal efforts to influence state election procedures through prosecutorial warnings.