Service Employees International Union v. DOJ - United States Department of Justice

FOR PUBLICATION F | L E D UNITED STATES COURT OF APPEALS NOV 2 2026 MOLLY C. DWYER, CLERK SERVICE EMPLOYEES No. 26-7303 INTERNATIONAL UNION, AFL-CIO; AMERICAN FEDERATION OF STATE, COUNTY & MUNICIPAL EMPLOYEES, AFL-CIO; LEAGUE OF UNITED LATIN AMERICAN CITIZENS; NATIONAL ASSOCIATION FOR THE ADVANCEMENT OF COLORED PEOPLE, Plaintiffs - Appellees, V. DOJ - UNITED STATES DEPARTMENT OF JUSTICE; TODD BLANCHE, Attorney General, in his official capacity as Attorney General; UNITED STATES DEPARTMENT OF HOMELAND SECURITY; MARKWAYNE MULLIN, in his official capacity as Secretary of Homeland Security, Defendants - Appellants. D.C. No. 3:26-cv-12800-TLT Northern District of California, San Francisco ORDER Before: Mary H. Murguia, Chief Judge, and Consuelo M. Callahan and Carlos T. Bea, Circuit Judges. BEA, Circuit Judge: Dissent by Chief Judge MURGUIA Pursuant to Circuit Rule 27-3, Defendants-Appellants (“the Government”) has moved for an immediate administrative stay and a stay pending appeal of the district court’s grant of a temporary restraining order in favor of Plaintiffs-Appellees. We have jurisdiction over this case under 28 U.S.C. § 1292(a)(1). The Government’s motion is GRANTED.‘ I. On October 29, 2026, Plaintiffs—two labor unions, and two political-interest groups—sued Defendants—the United States Department of Justice (“DOJ”), the Department of Homeland Security (“DHS”), the Attorney General, and the Secretary of Homeland Security (collectively, “the Government’). D. Ct. Dkt. 26 (“Order”) at 1. Plaintiffs alleged, in relevant part, that Defendants violated the Voting Rights Act (“VRA”) and the United States Constitution’s Elections Clause when federal officers sent and delivered letters to California and Washington that requested that state and county election officials “sequester” the ballots of certain voters the Government believed to be aliens, Order at 3; D. Ct. Dkt. 19-7 at 127-28. The letters also stated that “[a]n alien voting in a federal election is a federal crime—and knowingly facilitating such conduct is equally unlawful.” D. Ct. Dkt. 29-1 at 9. Infra App’x. Plaintiffs filed an ex parte motion for a temporary restraining order (“TRO”) to enjoin the Government from making any further requests for ballot sequestration or “threats” of prosecution. D. Ct. Dkt. 17. The district court granted the motion on October 30, 2026. By its terms, the TRO will expire on November 16, 2026, seventeen days after its entry.* Order at 7. It bars the Government from making further ballot-sequestration requests and “threats” of prosecution. Id. at 6-7. It also requires the Government to inform any state, county, or local government “to which any Defendant sent a letter regarding the processing and counting of ballots in the 2026 election .. . that the demands and threats of prosecution . . . reflected in that letter have been enjoined,” and requires the DOJ to “inform the Court of any pending search warrant applications, grand jury * Plaintiffs-Appellees’ motion to file an oversize brief and amicus curiae Justice Connection’s motion to file an amicus brief are likewise GRANTED. ? We note that the district court attempted to modify the TRO to last only fourteen days during a hearing on November 2, 2026. However, after the Government’s appeal, the district court lacked the jurisdiction to do so. L.g., Davis v. United States, 667 F.2d 822, 824 (9th Cir. 1982) (“The filing of a notice of appeal generally divests the district court of jurisdiction over the matters appealed.”) Therefore, we review the terms of the TRO as they existed at the time of the Government’s appeal. 2 26-7303 subpoenas . . . pertaining to any list of individuals alleged by Defendants to be ineligible to vote.” Order at 7. The district court entered the TRO ex parte. As it was not a hearing upon notice, the Government did not appear to oppose Plaintiffs’ motion in the district court. The Government filed a notice of appeal and, on November 1, 2026, filed the instant motion. Il. We review the Government’s motion for a stay pending appeal under four factors: “(1) whether the stay applicant has made a strong showing that [it] is likely to succeed on the merits; (2) whether the applicant will be irreparably injured absent a stay; (3) whether issuance of the stay will substantially injure the other parties interested in the proceeding; and (4) where the public interest lies.” Nken v. Holder, 556 US. 418, 426 (2009) (citation omitted). A stay “is not a matter of right, even if irreparable injury might otherwise result.” /d. at 433 (citation omitted). It is “an exercise of judicial discretion,” and “[t]he party requesting a stay bears the burden of showing that the circumstances justify an exercise of that discretion.” /d. at 433- 34, The first two factors “are the most critical.” Jd. at 434. On the first, “[i]t 1s not enough that the chance of success on the merits be ‘better than negligible.’” /d. (citation omitted). On the second, “simply showing some ‘possibility of irreparable injury’” does not suffice. /d. at 434-35 (citation omitted); see Doe #1 v. Trump, 957 F.3d 1050, 1058 (9th Cir. 2020); Leiva-Perez v. Holder, 640 F.3d 962, 968 (9th Cir. 2011) (per curiam). Once an applicant satisfies the first two factors, we assess the harm to the opposing party and weigh the public interest. Nken, 556 U.S. at 435. Those factors merge when the government is a party. See id.; Drakes Bay Oyster Co. v. Jewell, 747 F.3d 1073, 1092 (9th Cir. 2014). In evaluating the Government’s likelihood of success, we “review an order regarding preliminary injunctive relief for abuse of discretion, but review any underlying issues of law de novo.” Norbert v. City & Cnty. of San Francisco, 10 F.4th 918, 927 (9th Cir. 2021) (citation omitted). Il. The Government has established a likelihood of success on the merits. 3 26-7303 A. First, we clarify that the district court’s order, though styled as a TRO, is reviewable as a preliminary injunction. Whether a court of appeals has jurisdiction to review an order styled in this manner depends on the “practical effect” of the order, not the order’s title. Abbott v. Perez, 585 U.S. 579, 594 (2018) (“We have previously made clear that where an order has the ‘practical effect’ of granting or denying an injunction, it should be treated as such for purposes of appellate jurisdiction); Sampson vy. Murray, 415 U.S. 61, 86 n.58, 88 (1974) (construing a TRO as a preliminary injunction based on, in relevant part, “the possibility of drastic consequences which cannot later be corrected. . . . To deny review of an order that has all the potential danger of a preliminary injunction in terms of duration, because it 1s issued without a preliminary adjudication of the basic rights involved, would completely defeat the purpose [of appellate review of preliminary injunctions].”) A TRO has the effect of a preliminary injunction (and is therefore reviewable by the court of appeals) when it lasts longer than the default TRO period of fourteen days, id. at 1043-44, when it requires mandatory action, Adams v. Vance, 570 F.2d 950, 953 (D.C. Cir. 1978), or when, absent review, the appellant “would be effectively foreclosed from pursuing further interlocutory relief,’ Newsom vy. Trump, 141 F.4th 1032, 1044 (9th Cir. 2025) (per curiam) (quoting Env ’t Def. Fund, Inc. v. Andrus, 625 F.2d 861, 862 (9th Cir. 1980)). The TRO here has all three features. It lasts an initial period of seventeen days, it requires mandatory action by the Government (notifying every recipient of the letters and disclosing pending subpoenas and warrant applications), and it bars the Government from demanding ballot sequestration until and beyond Election Day, which renders later interlocutory relief meaningless for the Government’s purposes. Therefore, we have jurisdiction to review it. B. Next, we review the substance of the district court’s order. The district court’s order is based on its conclusion that Plaintiffs had established that the Government’s conduct likely violated Section 11(b) of the VRA and the Elections Clause. The district court is likely wrong on both counts. Section 11(b) of the VRA, 52 U.S.C. § 10307(b), provides: 4 26-7303 No person, whether acting under color of law or otherwise, shall intimidate, threaten, or coerce, or attempt to intimidate, threaten, or coerce any person for voting or attempting to vote, or intimidate, threaten, or coerce, or attempt to intimidate, threaten, or coerce any person for urging or aiding any person to vote or attempt to vote, or intimidate, threaten, or coerce any person for exercising any powers or duties under section 10302(a), 10305, 10306, or 10308(e) of this title or section 1973d or 1973¢ of title 42. Plaintiffs’ VRA claim faces an immediate problem: Section 11(b) does not contain an express private cause of action. See 52 U.S.C. § 10307(b). Instead, the VRA’s text vests enforcement authority in the Attorney General. /d § 10308(d) (“Whenever any person has engaged or there are reasonable grounds to believe that any person is about to engage in any act or practice prohibited by section . . . 10307 ..., the Attorney General may institute for the United States, or in the name of the United States, an action for preventive relief... .”). “The express provision of one method of enforcing a substantive rule suggests that Congress intended to preclude others.” Alexander v. Sandoval, 532 U.S. 275, 290 (2001). The more fundamental problem is that Plaintiffs’ claim would require us to recognize an implied private cause of action against the Executive. Cf Ziglar v. Abbasi, 582 U.S. 120, 133 (2017) (“it is a significant step under separation-of- powers principles for a court to determine that it has the authority, under the judicial power, to create and enforce a cause of action for damages against federal officials in order to remedy a constitutional violation.”). The VRA’s text, which prohibits conduct by “person[s],” counsels against such a reading, as courts apply a “longstanding interpretive presumption that ‘person’ does not include the sovereign,” Return Mail, 587 U.S. at 626-27, and require “‘an express statement by Congress” before subjecting the Executive to a generally applicable statute. Franklin v. Massachusetts, 505 U.S. 788, 800-01 (1992). 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. Congress cannot be lightly presumed to have imposed new liability for that conduct. See Trump v. United States, 603 U.S. 593, 609 (2024) (“Congress cannot act on, and courts cannot examine, the President’s actions on subjects within his ‘conclusive and 5 26-7303 preclusive’ constitutional authority.”); id at 620 (“the Executive Branch has ‘exclusive authority and absolute discretion’ to decide which crimes to investigate and prosecute, including with respect to allegations of election crime,” and “Jijnvestigative and prosecutorial decisionmaking is “the special province of the Executive Branch.’”); id. at 627 (explaining that the Take Care duty “plainly encompasses enforcement of federal election laws,” and the Executive “may speak on and discuss such matters with state officials . . . to encourage them to act in a manner that promotes the President’s view of the public good.”); cf Nat’/ Rifle Ass'n of Am. v. Vullo, 602 U.S. 175, 188 (2024) (“A government official can share her views freely and criticize particular beliefs, and she can do so forcefully in the hopes of persuading others to follow her lead.”). We therefore decline Plaintiffs’ invitation to read the VRA as rendering the Executive’s exercise of those functions as unlawfully intimidating, threatening, or coercive. The Government is also likely to prevail on Plaintiffs’ Elections Clause claim. The Elections Clause assigns to the states the authority “to prescribe the manner by which congressional elections are conducted.” United States v. California, _F.4th__, 2026 WL 3268272, at *3 (9th Cir. Oct. 30, 2026). In this case, the Government requested that the targeted states sequester certain ballots. They refused, and that refusal was ratified by this Court, see generally id., and the Supreme Court declined to grant emergency relief, United States v. California, 610 U.S. _ (Nov. 2, 2026). The states’ constitutional authority to regulate their elections is therefore unaffected. See Printz v. United States, 521 U.S. 898, 935 (1997) (holding that the federal government may request, but not compel, the states to enact or enforce a federal program). Plaintiffs treat California as dispositive on this point. The present case, however, poses a different question from that posed to the California panel: there, the panel decided whether a state must adopt the ballot-sequestration process requested by the Government here. California, _ F.4th sj 2026 WL 3268272, at *1. Here, we consider only whether the Government can make such a request in the first place. And as we explained above, we think that the Government has established that it likely can. We find these requests to be core Executive functions that did not actually disturb the states’ regulation of their own elections. C. 6 26-7303 The remainder of the factors do not counsel against a stay. Absent a stay, the Government will be irreparably injured. Noem v. Vasquez Perdomo, 146 S. Ct. 1, 4 (2025) (mem.) (Kavanaugh, J., concurring in the grant of application for stay) (“As the Court has indicated, any time that the Government is enjoined by a court from effectuating statutes enacted by representatives of its people, it suffers a form of irreparable injury.” (cleaned up) (quoting 7rump v. CASA, Inc., 606 U.S. 831, 835 (2025)).8 At most, Plaintiffs fear a possibility of a future prosecution. If such a prosecution is ever brought, the prosecution itself supplies the means by which any defect, vindictiveness included, can be raised and remedied. See Sampson, 415 U.S. at 90 (citation omitted) (“The possibility that adequate compensatory or other corrective relief will be available at a later date, in the ordinary course of litigation, weighs heavily against a claim of irreparable harm.”). The Government’s injury—being barred from requesting that the states segregate ballots from suspected non- citizens—cannot be undone after the fact. IV. For these reasons, we GRANT the Government’s motion for stay. ’ This case is distinguishable from California Nurses Ass’n v. Mullin, No. 26-7139, —_ F4th _, 2026 WL 3268397 (9th Cir. Oct. 30, 2026) (per curiam). There, we held that the Government “cannot suffer harm from an injunction that merely ends an unlawful practice.” Cal. Nurses, 2026 WL 3268397, at *6 (quoting Rodriguez v. Robbins, 715 F.3d 1127, 1145 (9th Cir. 2013)). As we explained above, the conduct by the Government here was likely not unlawful. 7 26-7303 FILED Service Employees International Union v. Department of Justice, No. 26-73 oN OV 2 2026 MURGUIA, Chief Judge, dissenting: MOLLY C. DWYER, CLERK U.S. COURT OF APPEALS Last Friday, we held that the United States has no authority to compel state elections officials to disregard their own lawful election procedures. United States v. California, No. 26-7231, 2026 WL 3268272, at *4 (9th Cir. Oct. 30, 2026) (hereinafter, “California’). Today, by contrast, we hold that several federal agencies and officials (“Defendants”) may compel state election officials to put aside state election procedures in favor of Defendants’ preferred procedures by threatening prosecution of state and local election officials who fail to comply. These two decisions cannot be reconciled. I dissent. I. On October 13, 2026, Defendant Department of Justice (“DOJ”) sent letters to the State of California and Los Angeles County demanding that election officials review a list of approximately 20,000 registered California voters who federal agencies identified as “likely noncitizens” within 48 hours. California and Los Angeles County refused, expressing doubts about the veracity and reliability of the list. The United States sued California and Los Angeles County on October 15. United States v. California, No. 2:26-cv-12025-DOC-ADS (C.D. Cal.). On October 16, the DOJ sent a letter to Los Angeles County officials stating: Under 18 U.S.C. § 611(a), noncitizens are prohibited from voting in any election involving federal offices. Under 18 USC. § 2, anyone who aids, abets, counsels, induces, or procures the commission of a federal offense is equally liable. If persons knowingly tabulate ballots cast by individuals identified by federal agencies as noncitizens, they risk becoming aiders and abettors to a federal crime. Your assertion that ballots must be counted simply because California’s registration system relies on self-attestation does not relieve election officials of their obligations under federal law when they are on actual notice of noncitizen voting. (Emphases added.) While the case was pending, the DOJ delivered letters—using uniformed DHS officers—to county officials across California, providing lists of purported noncitizens on the voter rolls and reiterating that the letters placed recipients on notice that they risk criminal liability if they process or count ballots that Defendants claims are ineligible. Federal marshals reportedly served at least one county employee at home. At the October 27 district court hearing in California, Defendants again reiterated “that State and County election officials who do not comply with [Defendants’] letter risk federal charges under 18 U.S.C. § 2, which criminalizes aiding and abetting the commission of a criminal offense.” United States v. California, No. 2:26-cv-12025-DOC-ADS, 2026 WL 3252428, at *7 (C.D. Cal. Oct. 28, 2026). The district court in California denied the United States’ request for an injunction on the following day, October 28. By October 29, the DOJ reportedly directed federal prosecutors to pursue 2 26-7303 criminal subpoenas of state and local elections officials in California. Defendants reportedly sent similar letters to election officials in all fifty states. On October 30, this court denied the United States’ emergency motion for an injunction on appeal in United States v. California, concluding that the United States had not shown a likelihood of success on its claim that 18 U.S.C. § 611 preempts California’s constitutionally permitted statutory scheme for administering its elections. California, 2026 WL 3268272, at *4. Today, the Supreme Court denied, without dissent, Defendants’ application for an injunction pending appeal. United States v. California, No. 26A624 (U.S. Nov. 2, 2026). Plaintiffs Service Employees International Union, AFL-CIO and American Federation of State County and Municipal Employees, AFL-CIO represent thousands of election workers in California and across the country, who face the risk of criminal prosecution for complying with state election procedures. Plaintiffs National Association for the Advancement of Colored People and the League of United Latin American Citizens represent members who fear that Defendants will erroneously identify them as noncitizens and that the resultant disruption will prevent their votes from being counted. On October 30, the district court—without opposition from Defendants and without a hearing—granted Plaintiffs’ ex parte application for a temporary restraining order (“TRO”) enjoining Defendants from “threaten[ing], intimidat[ing] 3 26-7303 or coerc[ing] state or local elections officials or workers” for failure to comply with Defendants’ demands to halt processing of ballots cast by individuals that Defendants allege are ineligible to vote. Il. In deciding whether to grant a stay, we consider: “(1) whether the stay applicant has made a strong showing that he is likely to succeed on the merits; (2) whether the applicant will be irreparably injured absent a stay; (3) whether issuance of the stay will substantially injure the other parties interested in the proceeding; and (4) where the public interest lies.” Washington v. U.S. Dep’t of Educ., 161 F 4th 1136, 1139 (9th Cir. 2025) (citation modified) (quoting Nken vy. Holder, 556 U.S. 418, 434 (2009)). “The first two factors of the traditional standard are the most critical.”” Nken, 556 U.S. at 434. I.! In California, this court addressed whether the United States may, relying on 18 U.S.C. § 611, require states to segregate ballots from individuals that federal ' As an initial matter, it is not clear that the district court’s order is appealable, as, in face of exigent circumstances, the district court issued the TRO without a hearing or any challenge to the basis of its order. See . Bay Sanctuary Covenant v. Trump, 932 F.3d 742, 762 (9th Cir. 2018) (“We treat a TRO as a preliminary injunction “where an adversary hearing has been held, and the court’s basis for issuing the order [is] strongly challenged.’” (quoting Bennett v. Medtronic, Inc., 285 F.3d 801, 804 (9th Cir. 2002)). 4 26-7303 agencies have identified as “likely” noncitizens. California, 2026 WL 3268272 at *3. We concluded it may not. Now, Defendants ask us to consider whether they may compel state and local officials to comply with their preferred procedure on pain of prosecution. The answer is the same: they may not. California is binding on this panel, and it is all but dispositive here. There, we explained that the Elections Clause expressly vests the states with “responsibility for the mechanics of congressional elections,” unless Congress preempts state elections procedures. /d. (quoting Arizona v. Inter-Tribal Council of Arizona, Inc., 570 U.S. 1, 9 (2013) (7CTA”)). And “[nJothing in § 611, a statute that criminalizes voting by a noncitizen, preempts California’s comprehensive statutory scheme that has been duly enacted under the Elections Clause.” /d. at *4. California law, like federal law, “plainly prohibits voting by noncitizens,” and “[t]o that end, California has established a comprehensive statutory scheme to ensure the integrity of its elections.” /d. “Because Congress has not exercised the specific power granted to it under the Elections Clause to override California’s established laws for challenging ballots or removing ineligible voters,” permitting the United States “to prescribe how [California] must process ballots would ‘override the plain and manifest dictates of the Constitution itself.’” /d. at *5 (quoting Ex parte Siebold, 100 U.S. 371, 392 (1879)). 5 26-7303 As in California, Defendants rely on 18 U.S.C. § 611.* And as in California, Defendants seek to compel state and local elections officials to segregate the contested ballots. The majority characterizes Defendants’ demand as a mere “request.” But if Defendants lack the authority to directly compel state election officials to implement their preferred state elections procedures, it is difficult to imagine how Defendants may indirectly coerce state election officials to disregard state eligibility procedures through threat of prosecution. See Coal. for Humane Immigr. Rts v. Dep ’t of Homeland Sec., No. 26-cv-3072, at *15 (D.D.C. Cir. Nov. 2, 2026) (“It is thus highly doubtful that Section 611(a) could be constitutionally applied to criminalize state officials’ compliance with state-law procedures for counting ballots cast by registered voters.”). The majority would permit Defendants to preempt state election procedures by threat of prosecution. Accordingly, Defendants are not likely to succeed on the merits of Plaintiffs’ Election Clause claim. IV. * Defendants’ attempt to buttress their authority through the Take Care Clause must fail, as the Take Care Clause cannot confer on Defendants powers that Congress has not. Youngstown Sheet & Tube Co. v. Sawyer, 343 U.S. 579, 587 (1952) (“[T]he President’s power to see that the laws are faithfully executed refutes the idea that he is to be a lawmaker’’); California, 2026 WL 3268272, at *4 (“Congress’s exercise of its Elections Clause preemption power only goes ‘so far as it is exercised, and no farther.’” (quoting /CTA, 570 U.S. at 9)) 6 26-7303 For similar reasons, Defendants cannot establish irreparable harm. “Nken instruct[s] ‘that if the petitionfer] has not made a certain threshold showing regarding irreparable harm . . . then a stay may not issue, regardless of the petitioner’s proof regarding the other stay factors.” Doe #/ v. Trump, 957 F.3d 1050, 1058 (9th Cir. 2020) (citation omitted). “There is no question about the legitimacy or importance of the State’s interest in counting only the votes of eligible voters.” Crawford v. Marion Cnty. Election Bd., 553 U.S. 181, 196 (2008). But as explained below, Defendants are not harmed by state and local officials’ compliance with lawful elections procedures, and the TRO does not irreparably curtail Defendants’ exercise of their prosecutorial powers. In their filings, Defendants vacillate between two theories of irreparable harm. On one hand, Defendants contend that it is imperative that they continue to issue these “warn[ings]” to state and local elections officials lest elections officials refuse to segregate the contested ballots. That is, Defendants contend that they would be harmed if elections officials follow the very state elections procedures that we have determined are /awful. California, 2026 WL 3268272, at *4. In the absence of an underlying “crime,” the inability to prosecute that crime cannot rise to the level of irreparable harm under Nken. That the district court in California found Defendants’ process for creating their list was not credible “substantially weaken[s] [Defendants’] claim that they 7 26-7303 are likely to suffer irreparable harm from” election officials tabulating “ballots being cast by noncitizens.” /d. at *6. Indeed, Defendants’ efforts are far more likely to disenfranchise eligible voters than they are to prevent noncitizen voting, hindering Defendants’ important interest in ensuring that the votes of eligible voters are counted. On the other hand, Defendants argue that any encroachment on their prosecutorial authority constitutes irreparable harm. As an initial matter, the TRO does not preclude lawful investigations or prosecutions of voter fraud—even into elections officials. It only bars demands or threats of prosecution against election officials for processing ballots from individuals who Defendants allege are ineligible to vote for a two-week period during the administration of an ongoing election. Defendants “do not point to evidence explaining that” their enforcement activities “would be impracticable or impossible to conduct under the [TRO’s] constraints.” California Nurses Ass’n v. Mullin, No. 26-7139, 2026 WL 3268397, at *6 (9th Cir. Oct. 30, 2026). Moreover, Defendants’ window to prosecute and investigate voter fraud does not end on Election Day. The “federal government can still prosecute noncitizens for voting after the fact because the State preserves the records of who voted (even if the State allows the noncitizen vote to count).” United States v. California, No. 26-7070, 2026 WL 3212945, at *24 (9th Cir. Oct. 26, 2026) 8 26-7303 (Bumatay, J., dissenting). Indeed, the DOJ’s longstanding policy directs that it should not engage in “overt criminal investigative measures . . . involving alleged ballot fraud” until the election is concluded. Justice Manual §9-85.300. See Washington yv. Trump, 847 F.3d 1151, 1168 (9th Cir. 2017) (concluding that a stay was not necessary to avoid irreparable harm where the district court’s order “merely returned the nation temporarily to the position it has occupied for many previous years’’). Finally, the principles underlying Purce/l counsel against disturbing the district court’s order while the election is ongoing. The district court’s TRO effectively preserves state eligibility procedures during an ongoing election, consistent with the principle that “lower federal courts should ordinarily not alter the election rules on the eve of an election.” Scanlan v. Coal. for Open Democracy, 610 U.S. __, 2026 WL 3167846, at *1 (2026) (quoting Republican Nat’! Comm. v. Democratic Nat’l Comm., 589 U.S. 423, 424 (2020) (per curiam)). “The Purcell principle applies with even greater force” when, as here, an election is already under way. People Not Politicians v. Onder, No. 26A388, 2026 WL 2883222, at *2 (U.S. Sept. 25, 2026) (per curiam); see California, 2026 WL 3268272 at *7 (“[I]t 1s not only voter confusion that matters in the Purce// analysis but election administration and broader electoral disorder stemming from late federal court-ordered changes to election rules.” (citation omitted)). Defendants’ 9 26-7303 efforts to investigate and prosecute elections officials would hamper states’ ability to effectively administer an election that is already well under way. Defendants have not shown irreparable harm. V. On the eve of Election Day, Defendants insist they must be free to use their prosecutorial powers to do what they could not through their applications for injunctions in this court and the Supreme Court. But the federal executive has no right to dictate election procedures to the states. And if Defendants cannot dictate these procedures directly, then they likewise cannot dictate them by subjecting vulnerable election workers to baseless—but chilling—threats of federal prosecution. 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. I would deny Defendants’ emergency motion to stay because the district court properly attempted to put a stop to Defendants’ efforts to intimidate election workers into abandoning lawful state election procedures through spurious threats of prosecution. I respectfully dissent. 10 26-7303 APPENDIX Case 3:26-cv-12800-TLT Document19-7 Filed 10/30/26 Page 127 of 128 PagelD #: 745 U.S. Department of Justice 950 Pennsylvania Ave, NW (202) 514-2000 Washington, DC 20530 October 13, 2026 Dean C. Logan Los Angeles County Registrar-Recorder / County Clerk 12400 Imperial Highway Norwalk, CA 90650 Via hand delivery Re: Noncitizen Voting in the 2026 Federal Election Dear Mr. Logan: As you're aware, federal law prohibits noncitizens from voting in federal elec- tions. See 18 U.S.C. § 611. The Supreme Court has also recognized that States “may not induce, encourage or promote private persons to accomplish what it is constitu- tionally forbidden to accomplish.” Norwood v. Harrison, 413 U.S. 455, 465 (1973) (citation omitted). I write to seek your help to protect the integrity of the ongoing federal election. On July 16, Secretary Mullin made the California Secretary of State aware that there are likely numerous noncitizens registered to vote in the federal election in California. He then asked for her cooperation to ensure the accuracy of these find- ings and to prevent noncitizen votes from diluting citizen votes. The Secretary’s re- sponse the following week did not refute that noncitizens are registered to vote in California. Nor did it contest that noncitizens receive ballots through California’s vote-by-mail regime, which automatically sends voting materials to “every registered voter.” 2021 Cal. Stat. ch. 312 (codified at Cal. Elec. Code § 3000.5). Instead, the Secretary of State asked for more information. I am now providing you, along with the Secretary of State, additional details. Accompanying this letter is a password-protected thumb drive with a list of names of people the Federal Government believes are likely noncitizens who were sent a vote-by-mail ballot from California to participate in the November 2026 fed- eral election. We request that you review the list within 48 hours to determine whether any citizens are listed. For individuals whom you cannot independently confirm citizen- ship status, we request that you immediately instruct the appropriate elections offi- cial to segregate—not cancel—those individuals’ vote-by-mail ballots until their cit- izenship status can be determined. If individuals on the list have not yet been sent GS :¢ Wd €4 190 9202 Case 3:26-cv-12800-TLT Document19-7 Filed 10/30/26 Page 128 of 128 PagelD #: 746 a vote-by-mail ballot, take all immediate and reasonable steps to not provide a ballot to those individuals until we confirm their citizenship status. If a ballot for any in- dividual on the list has been returned, instruct the appropriate elections official to not verify the signature and/or tabulate the ballot until citizenship can be deter- mined. This process will protect American citizens’ votes while preventing nonciti- zens from participating in the federal election in violation of federal law. The United States hopes that you share our commitment to ensure that only American citizens participate in our federal elections. Allowing noncitizens to vote cancels citizen votes. States are responsible for voter registration, and the Federal Government is responsible for maintaining immigration records to enable verifica- tion of citizenship. Working together, we can more effectively protect against voter dilution and promote election integrity. Please ensure that the process described above to prevent noncitizens from voting in the federal election is implemented by contacting election@hq.dhs.gov by October 15 at noon EST. If you cannot implement this process by then, given the ongoing federal election, the United States will have no choice but to seek emergency relief. We look forward to our collaboration as we work together to ensure free, fair and accurate elections. R\Tre cCotter \ Acting Deputy Attorney General United States Department of Justice Bilal A. Essayli First Assistant U.S. Attorney Central District of California Case 3:26-cv-12800-TLT Document19-8 Filed 10/30/26 Page 39 of 112 PagelD #: 785 U. S. Department of Justice United States Attorney Eastern District of Washington Thomas S. Foley U. §. Courthouse, Suite 340 P.O. Box 1494 (309) 353-2767 Spokane, Washington 99210-1494 Fax (509) 835-6397 October 26, 2026 Via Email The Honorable Steve Hobbs Secretary of State PO Box 40220 Olympia, WA 98504-0220 steve. hobbsid)sos.wa.gov; secretaryofstate(@sos.wa.gov Re: —- Noncitizen Voting in the 2026 Federal Election Dear Secretary Hobbs, As you're aware, federal law prohibits noncitizens from voting in federal elections. See 18 U.S.C. § 611. The Supreme Court has also recognized that States “may not induce, encourage or promote private persons to accomplish what it is constitutionally forbidden to accomplish.” Norwood v. Harrison, 413 U.S. 455, 465 (1973) (citation omitted). We’re aware of the current litigation and correspondence surrounding Assistant Attorney General Harmeet Dhillon’s request for the Washington voter roles — our request here, is separate and apart from that inquiry and litigation, as we seek your assistance to protect the integrity of the ongoing federal election. Washington law requires the automatic mailing of voting materials to “each active registered voter of the state.” Revised Code of Washington §29A.40.010. By law, ballots are to be mailed to “each voter at least eighteen days before each primary or election,” and ballots for the 2026 General Election were required to be sent to voters no later than October 15, 2026. Revised Code of Washington §29A.40.070(1). Accordingly, any registered voter in the State of Washington, including noncitizens that receive ballots through Washington’s vote-by-mail regime, was required to be sent a ballot no less than seven (7) days ago. The United States is concerned with the number of noncitizen voters, both enrolled and actively voting in the State of Washington, as allowing noncitizens to vote cancels citizen votes. To combat voting by noncitizens, in violation of 18 U.S.C. § 611, the Department of Homeland Security (DHS) provided our offices a list of names of persons who are noncitizens, who, with a high level of confidence, have voted in elections as recently as the August 2026 Primary elections. Some of these individuals have voted in Washington for over a decade and have voted more than two dozen times. To be clear: through the efforts of our federal law enforcement partners, the individuals identified are or were noncitizens (i.e., they may have subsequently naturalized). Our federal partners further identified that these individuals have, with a high level of confidence, voted. It is the United States’ belief that each of these individuals was sent a vote- by-mail ballot from the State of Washington to participate in the November 2026 federal election. The list of the identified individuals is attached to this letter and is comprised of over 400 individuals and over 1,500 total votes. Case 3:26-cv-12800-TLT Document19-8 Filed 10/30/26 Page 40 of 112 PagelD #: 786 October 26, 2026 Page 2 We advise that we anticipate imminently receiving a second list of individuals believed to be noncitizens who are registered to vote from DHS, which we will transmit ahead of the November 2, 2026, General Election with the request that you follow the protocol listed below. To help protect the integrity of the 2026 Election our request and expectations are simple: 1. You, or your office, review the list within 24 hours of receipt of this letter to determine whether United States citizens are listed. 2. Ifa ballot for any individual on the list has been or subsequently is returned, instruct the appropriate elections official to not verify the signature and/or tabulate the ballot until citizenship can be determined. We believe the requested actions will allow your office to determine whether noncitizens are voting in Washington’s elections in violation of State and Federal law. As you noted in your July 7, 2026, letter to William Mohrman, Senior Counsel with the Department of Justice’s Civil Rights Division, RCW 29A.04.205 provides the State’s obligation and commitment “to protect the integrity of the electoral process.” You further invited the Department of Justice to provide “meaningful assistance” to protect election integrity — that is our goal here. Through these efforts, specific individuals were identified, who, with high confidence, should not be registered to vote under Washington law, RCW 29A.08.370. Our request is simple; we ask that your office rectify this issue immediately. We further recognize the obligation county auditors and government agency employees providing voter registration services are under to properly carry out their duties in connection with voter registration pursuant to RCW 29A.84.110. While our offices do not enforce State law, we do make criminal referrals to our state counterparts: nonetheless, we do expect a prompt response from your office by enacting the approach above and with any further actions you deem appropriate to comply with the State or Federal laws cited. Please ensure that the process described above to prevent noncitizens from voting in the federal election is implemented by contacting election@hq.dhs.gov and copying me at: pete.serrano wusdoj.zoyv by October 28 at noon PST. If you cannot implement this process by then, given the ongoing federal election, the United States will have no choice but to seek emergency relief. The United States hopes that you share our commitment to ensure that only American citizens participate in our federal elections. Your assistance in this process will protect American citizens’ votes while preventing noncitizens from violating federal la