9th Circuit Reinstates Ruling Allowing DOJ to Flag Suspected Noncitizen Ballots
A three-judge panel had lifted restrictions on the DOJ’s efforts to have California and Washington separate ballots cast by suspected noncitizens just hours before the full court intervened.
***UPDATE: The full 9th Circuit Court of Appeals reinstated its earlier ruling allowing the Trump administration to ask state election officials to set aside ballots they suspect noncitizens cast.
The vote was 6-5.
Officials can even warn state election officials that they could face federal prosecution if they knowingly count ballots from noncitizens.
BREAKING: In a 6-5 vote, the Ninth Circuit reinstated its earlier ruling lifting restrictions on the Trump administration's efforts to have states set aside suspected noncitizen ballots, allowing it to resume such requests and warn election officials of prosecution. pic.twitter.com/w6UFfDfHlP
— SCOTUS Wire (@scotus_wire) November 3, 2026
Previous reporting….
Late Monday night, the full 9th Circuit Court of Appeals struck down a ruling that would have let states set aside ballots cast by suspected noncitizens.
Chief Judge Mary H. Murgia wrote:
Upon the vote of a majority of nonrecused active judges, it is ordered that this case be reheard en banc pursuant to Federal Rule of Appellate Procedure 40(c) and Circuit Rule 40-3. The three-judge panel order for publication filed on November 2, 2026, is vacated.
BREAKING: The full Ninth Circuit has vacated a panel ruling issued just hours earlier that allowed the Trump administration to pressure election officials to set aside ballots from suspected noncitizens under threat of prosecution. An 11-judge panel will now rehear the case. pic.twitter.com/zTSHN9iLAN
— SCOTUS Wire (@scotus_wire) November 3, 2026
So, yeah, just hours before that ruling, a three-judge panel lifted restrictions on the DOJ’s efforts.
How can the 9th Circuit just decide to do this? It’s in the rule, as Murgia pointed out:
Federal Rule of Appellate Procedure 40(c): When Rehearing En Banc May Be Ordered. On their own or in response to a party’s petition, a majority of the circuit judges who are in regular active service and who are not disqualified may order that an appeal or other proceeding be reheard en banc. Unless a judge calls for a vote, a vote need not be taken to determine whether the case will be so reheard. Rehearing en banc is not favored and ordinarily will be allowed only if one of the criteria in Rule 40(b)(2)(A)–(D) is met.
The DOJ asked California and Washington election officials to separate ballots the feds believe noncitizens cast.
Judges Carlos Bea and Consuelo Callahan didn’t find the request “coercive.” The separation of powers has a lot of weight in this case (omitted citations):
This separation-of-powers concern has particular weight in this case. Consider the conduct at issue here: the Government delivered letters to state and local officials that requested that the states implement the Executive’s preferred policy, warned those states of the strictures of federal law, and instigated investigations into suspected violations of that law. These are core Executive functions.
We therefore decline Plaintiffs’ invitation to read the VRA [Voting Rights Act] as rendering the Executive’s exercise of those functions as unlawfully intimidating, threatening, or coercive.
Murgia served on that panel and dissented.
BREAKING: In a 2-1 vote, the Ninth Circuit lifted restrictions on the Trump administration's efforts to have states set aside ballots from suspected noncitizens, allowing it to resume such requests, warn election officials of prosecution, and pursue related investigative steps. pic.twitter.com/F0bhXtQ4ft
— SCOTUS Wire (@scotus_wire) November 3, 2026
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Comments
Good. I think, but my head hurts from this inseccant back-n-forth to the courts.
And it ain’t over. Leftists will continue to slow walk, foot drag, obfuscate, and scam so they can find just a few more 3 a.m. ballot dumps to get em over the finish line.
My head hurts…
IMHO I don’t think it’s going to matter. My stomach is in knots after reading doom and gloom in the National Review (J Geraghty). GOP is about to drown.
So, can they be set aside or not? I’ve lost track.
I’m afraid I’m confused by the headline and the article as to what happened. Is it
1. Because the 9th circuit cleared a ruling, the DOJ is therefore able to resume trying to keep suspected noncitizen ballots separate.
— OR —
2. The three judge panel lifted their ruling, thus allowing the DOJ to resume their efforts, but the 9th circuit then vacated that order, so they may no so attempt.
Thanks for any clarifications.
It’s clear.
1. “In a 2-1 vote, [a 3-judge panel of] the Ninth Circuit lifted restrictions on the Trump administration’s efforts to have states set aside ballots from suspected noncitizens, allowing it to resume such requests, warn election officials of prosecution, and pursue related investigative steps.”
2. Hours later the full circuit vacated that panel ruling. Thus the administration is NOT allowed to do all those things, pending a full circuit hearing on the matter.
Clear as mud…
The entire panel weighed in 6-5 supporting the Trump DOJ in forcing states to hold these ballots for inspection. If they do not they can face criminal charges.
No, it didn’t say that. It just said the DOJ can’t at this point be restrained from making those threats.
its “not allowed” when elections are in season and then its “too close” to election time when they actually try to wean out the non eligible voters
and of course the msm reports it as
trump goes after voters/ voter rolls and election officials and will try and overturn any close election wins by a dem etc etc
the only thing we can be sure about is our judeochristian agenda is o..u…t
and islamodems are in
Voting is a joke, I repeat myself, unfortunately.
Cool. Nice to know the 9th Circuit and the defendant’s have, via their actions here, voluntarily set aside any potential arguments re certification of election results, seating of ‘winning candidates’ as well as any sort argument that boils down to ‘too late, nothing we can do b/c these ballots were were mixed in and not segregated, or it would be too disruptive to remedy post election day’. No whining when/if plaintiffs (DoJ and others opposed to allowing fraud to stand) demand the entire election contest results be thrown out. They should just assume the position bend over and take it b/c they created the situation that the only possible remedy once ballots are mixed in would be to toss the results. No crying. No arguments about ‘disenfranchised voters’.
so, regardless what the constitution may hold, it is a bunch of unelected fools who decide potential noncitizens along with their ‘ votes ” may ultimately be counted or not
and what of ” we, the people ” ?
“We, the people” get the middle finger is what.
The constitution doesn’t say anything on the matter of who can vote. If Congress decides to allow states to open elections to aliens, and a state decides to do so, it would be completely valid.
The constitution does, however, say very clearly that the judicial power, i.e. the power to say what the law is, is vested in the federal courts, i.e. that very same “bunch of unelected fools” of which you complain.
Only the confusion is consistent with the court system.
I knew the Judiciary would not let the Trump Admin do anything. The law does not matter to these judges.
God help me, I want an interaction diagram on this one.
The most useless of the UML.diavrams — and that’s saying something — may have found a use tracking the procedural ping-pong of contested cases.
That’s not a good sign for the stuff being mapped.
I think a more accurate headline might be “Appeals Court authorizes non-citizen voting”.
No, that would not be accurate. The question here is not about aliens voting (which is prohibited by federal statute, not by the constitution), but about whether the US government has the authority to act aggressively against the state authorities in the manner that it has been.
The 3-judge panel voted 2-1 that it does; the full panel suspended that so it consider the matter; and having considered it voted 6-5 to uphold the panel’s 2-1 decision.
so, how is this not “9th circuit authorizes disenfranchisement of all citizens voting”?
Because it’s not about the voting, it’s about the US government’s power to pressure the state authorities. The subject of that pressure is irrelevant.
“struck down a ruling that would have let states set aside ballots”
“vacated a panel ruling issued just hours earlier that allowed the Trump administration to pressure election officials to set aside ballots”
“lifted restrictions on the Trump administration’s efforts to have states set aside ballots”
So somebody didn’t not not not not not not do something.
It is my understanding that an 11th hour full 8th circuit judges panel did hand Trump a 6-5 decision to continue.
Correction: 9th Circuit.
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