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A unanimous Ninth Circuit panel on Friday denied the Department of Homeland Security’s motion for a stay pending appeal of a preliminary injunction barring the department’s “Unlawful Voter Initiative” election-related field operations in nine states through Election Day. The panel held that the government had not shown it would be irreparably harmed by the injunction, noting it had waited until weeks before the election to begin its enforcement “Surge.” (Order.) The Ninth Circuit also denied rehearing en banc over the dissent of seven judges. (En Banc Order.)
A divided Ninth Circuit panel on Friday denied the Justice Department’s emergency motion for an injunction pending appeal that would have required California to segregate the mail-in ballots of roughly 20,000 people whom the government has identified as “likely noncitizens.” The per curiam majority held that the government had not clearly shown that the federal ban on voting by noncitizens preempts California’s procedures for challenging ballots. Judge Patrick J. Bumatay dissented. (Order.) For background, see a previous Roundup.
Judge James E. Boasberg (D.D.C.) on Friday ordered the government to disclose to plaintiffs’ attorneys, under strict confidentiality, its list of roughly 20,000 alleged noncitizen California voters. The plaintiffs’ experts then reported that over 40% of the names were “not anywhere to be found on the current California voter file.” (Supplemental Memo.) On Sunday, the government moved to strike the filing as a violation of the court’s confidentiality order. (Docket.)
Judge Sharon L. Gleason (D. Alaska) on Sunday dismissed without leave to amend the Justice Department’s suit seeking to block certification of Alaska’s Senate election if incumbent Senator Dan Sullivan loses and the votes cast for a second candidate, Daniel J. Sullivan, would have changed the outcome. Judge Gleason held that the United States failed to establish redressability; segregating ballots so that law enforcement could investigate the voters who cast them “is not a remedy that this Court can or should order” given the right of Alaskans to a secret ballot. (Order.) (NYT.) The department appealed. (Notice of Appeal.) For background on the suit, see a previous Roundup.
Judge Trina L. Thompson (N.D. Cal.) on Friday temporarily restrained the Justice Department and the Department of Homeland Security from threatening election officials with criminal prosecution for processing the ballots of voters whom the government alleges are ineligible, and from demanding that officials remove such voters from the rolls or segregate their ballots. (Order.) The government appealed and moved to stay the order; Judge Thompson scheduled a hearing on the stay motion for Monday afternoon. (Notice of Appeal.) (Motion to Stay.) (Docket.)
Judge Jennifer L. Rochon (S.D.N.Y.) on Friday expanded her temporary restraining order against the Trump administration’s taxpayer-funded advertising campaign to enjoin the dissemination of three of the challenged advertisements, including via third parties such as MAGA Inc. Judge Rochon concluded that the plaintiffs had demonstrated a clear and substantial likelihood of success on their ultra vires claim. (Order.) (WaPo.)
Judge Brendan A. Hurson (D. Md.) on Friday granted a temporary restraining order and APA stay requiring U.S. Citizenship and Immigration Services to resume giving unaccompanied children at least 21 days’ written notice of their asylum interviews—rather than as little as a day—and to restore its prior rescheduling policy. Judge Hurson wrote that it is “difficult to maintain that the public has an interest in the perpetuation of a chaotic system that may result in vulnerable children being wrongfully removed to places where they may suffer abuse, or even death.” (Order.) (NYT.)
Virginia and the District of Columbia on Saturday sued the National Park Service to block construction of President Trump’s planned 250-foot arch, which the government has said could begin as soon as Nov. 5. The complaint alleges that the arch lacks the congressional authorization required by the Commemorative Works Act and would nearly double the District’s 130-foot height limit. (Complaint.) Judge Tanya S. Chutkan (D.D.C.) consolidated the case with Lemmon v. Trump, the Vietnam War veterans’ pending challenge to the arch, and on Sunday set briefing on the plaintiffs’ motion for a temporary restraining order. (Order.) (Minute Order.) (NYT.) For background on the veterans’ case, see a previous Roundup.
Andrew C. McCarthy characterized the perjury case against Cassidy Hutchinson as an unserious and “hopeless attempt” that demonstrates the total dearth of senior administration officials able to dissuade the president from “forcing actions that are both imbecilic and against his political interests.” (National Review.) For background on the perjury case, see a previous Roundup.
Pending Interim Order Applications Involving the U.S. Government in the Supreme Court
Mullin v. Friends of the Ruidosa Church: The government on October 21 asked the Supreme Court to issue a stay pending appeal of a district court preliminary injunction halting government construction of barriers along a portion of the U.S.-Mexico border. The government asked the Court to construe its application as a petition for a writ of certiorari and grant the petition. (Application.) The respondents filed their opposition on October 29, and the government filed its reply on October 30.