9th Circuit rejects rare effort for full en banc rehearing in elections dispute

The 9th U.S. Circuit Court of Appeals on Tuesday night rejected a rare motion for a full en banc rehearing of a stay that would have reconsidered an Election Day ruling that lifted restrictions on the Trump administration's threats to prosecute election workers.

Stacey Leyton, a partner at Altshuler Berzon LLP in San Francisco representing the plaintiffs, urged the court's active judges to overturn an 11-judge en banc panel's 6-5 decision reinstating a stay of a federal judge's temporary restraining order.

"Federalism principles of the highest order, embedded in our Constitution, require correction of this erroneous decision by the full Court," Leyton wrote.

But a few hours later, the 9th Circuit denied Leyton's request after a judge requested a vote on whether to rehear the limited en banc panel's order before the full court.

"A majority of the nonrecused active judges did not vote in favor of full court rehearing en banc. Accordingly, the petition for full court rehearing en banc is denied," Senior 9th Circuit Judge Sidney R. Thomas and en banc coordinator wrote for the court.

The last-ditch effort by the Service Employees International Union and other plaintiffs against the Trump administration concluded unsuccessfully on a starkly partisan note. Service Employees International Union et al. v. Department of Justice, 26-7303 (9th Cir., filed Oct. 31, 2026).

This was the tenth time a 9th Circuit judge requested a full-court rehearing, according to Arthur Hellman, professor emeritus at the University of Pittsburgh School of Law.

"It has never succeeded," Hellman said in a telephone interview Tuesday afternoon.

The final motion followed an extraordinary sequence of rulings over the administration's efforts to pressure state and local election officials to segregate ballots cast by suspected noncitizens.

On Monday evening, a three-judge panel voted 2-1 to stay an order restricting those Trump administration efforts. A majority of the court's active judges then voted later that night to rehear the case, temporarily restoring the restrictions.

But on Tuesday morning, after polls had opened, a newly selected 11-judge panel, picked by lot, reinstated the stay by a 6-5 vote.

All six judges in the majority were appointed by Republican presidents, while the five dissenters were Democratic appointees.

The ruling prompted sharp criticism over the court's handling of the dispute, although UCLA election law expert Richard L. Hasen cautioned against drawing sweeping conclusions from the result.

"I would not overread the results here," Hasen, director of UCLA School of Law's Safeguarding Democracy Project, said in an email Tuesday.

Hasen said the case presented a closer legal question than a separate dispute in which federal courts, including the U.S. Supreme Court, rejected the administration's attempt to force California to segregate ballots associated with approximately 20,000 voters federal officials identified as possible noncitizens.

"This case was a much closer call than the United States v. California case involving the federal government seeking to order California to segregate ballots -- which was blocked by the district court, Ninth Circuit, and the Supreme Court without even requesting responsive briefing," Hasen said.

"The en banc case instead was about what the DOJ could say to election officials and about whether a part of the Voting Rights Act that is rarely litigated includes a private right to sue."

U.S. District Judge Trina L. Thompson of San Francisco, an appointee of President Joe Biden, issued a temporary restraining order Oct. 30 prohibiting the Justice Department and Department of Homeland Security from demanding that state officials segregate ballots from suspected noncitizens or threatening prosecution of election workers who refused.

Thompson concluded that the administration's conduct likely violated Section 11(b) of the Voting Rights Act, which prohibits intimidation and coercion related to voting, as well as constitutional limits on federal interference with state election administration.

"Although Defendants claim that their actions are designed to halt unlawful voting by noncitizens, their actions are likely to have the effect of interfering with election administration and disenfranchising lawful voters," Thompson wrote.

The administration appealed, and a three-judge panel stayed Thompson's order Monday evening.

Senior Judge Carlos T. Bea and Judge Consuelo M. Callahan, both appointed by President George W. Bush, concluded that the administration's letters to election officials fell within its authority to investigate suspected violations of federal law and communicate its interpretation of legal requirements.

"These are core Executive functions," Bea wrote.

Chief Judge Mary H. Murguia, an appointee of President Barack Obama, dissented, arguing that the federal government could not use threats of prosecution to accomplish what courts had prohibited it from doing directly.

"The Constitution's allocation of election procedures to the states is meaningless if Defendants can coerce states into foregoing their chosen procedures by abusing their prosecutorial powers," she wrote.

After the full court voted overnight to rehear the case and vacate the stay, the newly selected 11-judge panel reinstated it Tuesday morning.

The majority concluded that the administration was likely to prevail, in part because Section 11(b) does not expressly authorize private lawsuits against the federal government.

Judge Eric D. Miller, joined by Judge Mark J. Bennett, acknowledged in a concurrence that the administration's legal positions might be questionable but said that did not justify an injunction restricting its communications. Both judges were appointed by President Donald Trump.

"Many of the positions taken by the federal government in its recent communications to state election officials may have little merit," Miller wrote. "But a district court does not generally have the authority to enter an injunction prohibiting the Department of Justice from expressing its views about criminal statutes, even if the court determines that those views are incorrect."

Murguia, joined by Judges Ronald M. Gould, John B. Owens, Holly A. Thomas and Roopali H. Desai, sharply disagreed.

She argued that the decision conflicted with the 9th Circuit's separate ruling in United States v. California, which rejected the administration's attempt to compel state officials to segregate ballots.

"These two decisions cannot be reconciled," Murguia wrote.

She warned that election workers were being forced to choose between following state election procedures and risking federal prosecution.

"As the en banc court majority reinstates the stay on the morning of Election Day, state and local election officials and workers must choose between complying with two conflicting opinions of our court," she wrote.

In a separate dissent, Desai criticized the timing of the court's rapidly shifting decisions.

"In the span of twelve hours in the middle of an ongoing election and on the literal eve of Election Day, our court issued three conflicting orders," she wrote.

The underlying lawsuit was brought by the Service Employees International Union, the American Federation of State, County and Municipal Employees, the League of United Latin American Citizens and the NAACP.