A Ninth Circuit panel on Monday paused Judge Thompson's order barring the Trump administration from demanding that election officials set aside the ballots of suspected noncitizen voters, clearing the administration to resume the demands — and its threats of prosecution against officials who refuse — while its appeal runs.
The 2-1 decision puts Thompson's order on hold pending the appeal. Judges Carlos Bea and Consuelo Callahan held that the government likely may make such requests without requiring states to comply. Chief Judge Mary Murguia dissented, arguing that threats of prosecution could coerce officials into abandoning lawful election procedures.
The panel did not order any state to set ballots aside, and the stay does not reach California's separate protection: on the same Monday, Judge Boasberg issued his own injunction barring federal officials from demanding that California set aside ballots or depart from state procedures based on the government's suspected-noncitizen lists. Earlier Monday, the Supreme Court had also rejected a separate administration request to force California to set aside the ballots of roughly 20,000 voters on those lists.
For election officials outside California, the ruling means the federal pressure is back on for Election Day itself: the Justice Department and Homeland Security can again press them to pull listed voters' ballots aside until citizenship is proven, with prosecution held over non-compliance — while the officials' own case against the demands continues in the appeal. For voters on the lists, it means a ballot cast today can be challenged and held aside pending proof of citizenship.
On Tuesday, a majority of the Ninth Circuit's active judges voted to rehear the case en banc and vacated the panel's order, so Judge Thompson's bar on the threats stands while the full court decides.
— Previously posted on Monday, November 2, 2026 —
The government's own lawyer has now said in open court what the error figures suggested. At Monday's hearing before Judge Thompson, Justice Department lawyer Kenneth Kao — the attorney defending the administration in this case — told the judge it is "fair" to say the Trump administration's list of "likely noncitizen" voters has a high error rate. And he gave the reason the errors sit at the centre of the government's own case: they are why the government asked county election officials for help verifying the list.
The list Kao was describing is the same one at the heart of the California fight this page has followed all week — the roughly 20,930-name list that a CHIRLA and UCLA analysis found included 8,880 names not in the voter file at all, the list Judge Boasberg barred the administration from using to demand ballots be set aside, and the list whose fate the Supreme Court was asked to decide on Monday. Kao's admission came in the Thompson case itself: the election-worker unions' suit in which the judge's order bars the Justice Department from threatening election officials with prosecution over the midterms.
For a lawful voter whose name sits on that list, the error rate is not a statistic — it is the difference between a ballot counted and a ballot segregated, challenged or set aside. The Department's position across these cases remains that the list is a starting point for verification, never a verdict; Kao's words on Monday are the fullest statement of that position yet, made by the government's own lawyer, to the judge holding his department's letters in check.
— Previously posted on Monday, November 2, 2026 —
The Justice Department went back to Judge Trina Thompson on Monday and asked her to stay or dissolve her own restraining order — the order that bars the Department from threatening election workers with prosecution for processing ballots the way state and federal law require. In its motion in SEIU v. U.S. Department of Justice, the Department contests the idea that it "intimidates" election workers when it reminds them that federal law makes it a crime for a noncitizen to vote in a federal election, argues that the election-worker unions who sued have no standing because their members are not harmed by such reminders, and asks the judge for an immediate ruling. The Department has also appealed to the 9th Circuit, which had not ruled as of Monday morning.
Judge Thompson, of the Northern District of California, issued the temporary restraining order on Friday evening, before the Department had even filed a response. It applies nationwide and runs until 5 p.m. on November 16, past Tuesday's election and the first count. It bars the Justice Department and the Department of Homeland Security from threatening, intimidating or coercing election officials and workers to halt processing, segregate or refuse to count the ballots of registered voters solely because the government alleges those voters are ineligible; from demanding that officials remove such voters from the rolls; and from threatening prosecution for counting ballots as the law requires. It also orders the Department to tell every recipient of its letters that the demands have been enjoined, and to disclose to the court any pending search warrant applications, grand jury subpoenas or other demands for election materials tied to its lists of alleged noncitizens. The judge found the unions and civil-rights groups likely to succeed on their claim that the Department's campaign violated Section 11(b) of the Voting Rights Act, which bans intimidating or coercing anyone for voting or for aiding another person to vote, and wrote that workers who process ballots as the law requires do not violate federal criminal law.
The Department's motion takes aim at that legal finding as well. It argues that Section 11(b) does not apply to noncitizens, who have no right to vote, and so does not shield workers who knowingly process illegal ballots either — and that a reminder of what the law says is not intimidation. The suit was filed on Thursday by the SEIU, AFSCME and the AFL-CIO, which represent election workers across California, together with the NAACP and LULAC. Their complaint says the Department sent its letters to 57 of California's 58 counties, that armed Homeland Security officials delivered letters to counties on October 23, and that the Department opened a criminal investigation and issued grand jury subpoenas to Los Angeles County election workers.
In their opposition, the unions say the Department's motion rests on misrepresentations of the record, and they point to the Department's own words. In an October 16 letter to Los Angeles County election officials, quoted in the opposition, the Department warned that officials who knowingly tabulate ballots cast by people identified by federal agencies as noncitizens risk becoming "aiders and abettors to a federal crime." The unions argue their members are harmed now, by the threats themselves — left with a choice between obeying the Department's demands and doing the duties the law sets for them, at the risk of criminal investigation and prosecution.
For the workers who will process and count Tuesday's ballots, the order means they can do that work under the normal rules, in California and across the country, without a federal prosecution threat hanging over ballots cast by registered voters the government says are ineligible. A hearing on a longer-lasting injunction is set for November 13, and the separate fight over the Department's demand that California set aside some 20,000 ballots continues in its own case, which the Department has already carried to the Supreme Court.
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