US judge bars Trump administration from threatening election officials over ballots, as Newsom warns courts of possible ballot seizures
A federal judge has ordered the Justice and Homeland Security departments to stop threatening election officials over ballot processing days before the 3 November midterms, the Justice Department has appealed, and California's governor has warned federal judges to be ready for attempts to seize ballots before certification.
A federal judge in California has imposed a sweeping emergency order barring the Trump administration from threatening or pressuring state and local election officials over ballot processing, just three days before the United States midterm elections on 3 November. The order, issued late on Friday by US District Judge Trina Thompson of the Northern District of California, is the most far-reaching judicial check yet on a weeks-long federal campaign that election workers and civil rights groups said was designed to intimidate officials into setting aside ballots.
Judge Thompson granted a temporary restraining order in a lawsuit brought by a coalition of labour unions and civil rights organisations, including the NAACP, the League of United Latin American Citizens, the Service Employees International Union, the AFL-CIO and the American Federation of State, County and Municipal Employees. The groups, which represent many election workers, filed the case on Thursday, arguing that senior officials at the Justice Department and the Department of Homeland Security had threatened criminal prosecution against officials who processed ballots in line with state and federal law but contrary to the administration's demands.
In her opinion, Judge Thompson found that the plaintiffs were likely to succeed on their claims and that the balance of interests weighed in their favour because polling day was so close. She wrote that although the defendants claimed their actions were designed to halt unlawful voting by non-citizens, their actions were likely to have the effect of interfering with election administration and disenfranchising lawful voters. She added a blunt assessment of the timing: ballots had already been issued, Americans had already begun voting, and workers had already begun processing ballots, leaving no reason to delay the ruling.
The order itself is broad. While it remains in force, the Justice Department and the Department of Homeland Security may not threaten, intimidate or coerce state or local election officials or workers to demand that they halt processing the ballots of any registered voter solely because the administration alleges that voter is ineligible. Nor may the agencies demand that officials segregate ballots, purge voters from voter rolls, refuse ballots to specific voters, or remove named individuals from registration lists on the basis of the administration's lists of alleged non-citizens. The judge also ruled that when state and local employees distribute, process or count ballots in accordance with the law, they do not violate federal criminal law even if a particular ballot belongs to a registered voter alleged by the defendants to be ineligible.
Judge Thompson went further than simply banning threats. She required the administration to inform her of any search warrant applications, grand jury subpoenas or other demands to access election materials or ballots connected to its lists of allegedly ineligible voters. That reporting requirement goes to the heart of the dispute: the administration's critics have warned that, after failing to persuade courts to set ballots aside, federal agents could instead try to seize ballot materials directly. The temporary restraining order is set to expire on 16 November, after election day and into the certification period.
The ruling grew out of a confrontation that began in California but quickly spread across the country. On 13 October, the Justice Department sent letters demanding that California's secretary of state and the Los Angeles County registrar segregate ballots belonging to about 20,000 registered voters whom federal officials suspected of being non-citizens. Similar demands and threats of prosecution followed in other states. The administration has argued that more than 20,000 non-citizens are registered to vote in California, though the state and many election experts have questioned the validity of that list, and the Justice Department has not said how many of the people on it have actually cast ballots. California has said the administration's assertions relied on suspect data and that complying with its demands would risk disenfranchising eligible voters.
Friday brought two setbacks for the administration in quick succession. A California appeals court rejected a Justice Department request to set aside disputed ballots in the midterms, and Judge Thompson then issued her restraining order. Although she sits in Northern California, her order appears to apply nationwide, because it binds the federal agencies rather than any single state's officials. Other judges hearing related lawsuits had already told the department to stop threatening election officials, but Thompson's order is the first to legally bar such threats in this form.
On Saturday, the legal fight escalated on both sides. The Justice Department appealed Judge Thompson's order to the Ninth Circuit Court of Appeals, setting up a fast-moving appellate battle that could, as in the California records dispute, head towards the US Supreme Court. At the same time, California Governor Gavin Newsom, a Democrat, wrote to federal judges warning them to be ready for possible attempts by the administration to seize ballots during the midterm elections.
In his letter, Newsom pointed to the administration's persistence in advancing what he called a baseless theory of criminal liability for election officials. He wrote that he had grave concerns federal agents would seek search warrants to seize ballots and ballot materials before the election results were certified, and that the only reason to use search warrants would be to interfere in the state's lawful counting of ballots and certifying of the results. His warning was sent as California's legal fight with the administration continued over its demand for state voter records as part of a criminal investigation into non-citizen voting.
The stakes of the dispute extend well beyond California. All 435 seats in the House of Representatives and 35 Senate seats are at stake on Tuesday, and control of Congress for the final two years of President Donald Trump's term hangs in the balance. The US Constitution assigns the administration of elections to the states, and the judge's order rests in part on that division of authority, as well as on the Voting Rights Act and constitutional protections for voters and election workers. Election officials have said that the threats alone, even without a prosecution, can chill their work and slow the counting of lawful votes.
What happens next will unfold in a matter of days. The Ninth Circuit must decide whether to leave Judge Thompson's order in place while the underlying lawsuit proceeds, and the administration could ask higher courts to intervene before or shortly after polling day. Until 16 November, however, federal officials are barred from using threats of prosecution to reshape how ballots are handled. For election workers counting votes across the country, the order offers a measure of protection in the final stretch; for the administration, it is a significant judicial rebuke of a strategy it has pursued for weeks in the name of preventing unlawful voting.
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