A federal appellate court on Friday upheld a lower court order that restricted Department of Homeland Security agents from door-knocking at homes of citizens as part of the preelection voter fraud probe in nine states.
A three-judge panel of the U.S. 9th Circuit Court of Appeals declined to lift a block on DHS agents conducting elections-related operations targeting people as part of the Trump administration’s initiative to find suspected illegal voting by noncitizens. The block, which is in effect until polls close on Election Day, is meant to protect naturalized citizens from voter intimidation.
The panel pointed to DHS’s timing of the operations and its delay in court action as reasons why keeping the restrictions in place would not harm the government, as the DOJ had argued.
“The Federal Defendants’ questionable timing in pursuing a ‘surge’ in voter fraud enforcement operations, and Federal Defendants’ delay in seeking a stay further undermine any potential showing of irreparable harm,” the court’s order states. “In an operation ostensibly focused on past voter fraud, the government could have aggressively pursued its campaign against non-citizen voting well before these elections commenced.”
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Voter rights groups and local governments in California sued DHS last month over its deployment of agents to question people at their homes in search of noncitizen voters. The door-knocking operation by armed officials and the publicization of those operations and arrests amounted to voter intimidation, the groups and local officials argued.
The 9th Circuit ruling comes as legal battles are developing across the country in the days ahead of the election, with the Trump administration seeking to prove that immigration-related voter fraud is taking place at a wide scale.
“Last week, the district court held that DHS’s frantic, last-minute voter investigations are unlawful voter intimidation,” said Beau Tremitiere, an attorney from Protect Democracy, representing the plaintiffs. “Today, the government’s attempt to restart that campaign failed.”
The prohibition on the field operations only applies to California, Connecticut, Georgia, Missouri, Nevada, New York, Pennsylvania, Washington state and Wisconsin, where DHS directed Homeland Security Investigations agents to prioritize questioning people about their voter eligibility based on data that includes naturalized citizens.
During a hearing Thursday, the judges questioned the Justice Department attorney about why the government would be harmed if it couldn’t continue its investigation until after Election Day.
“You can’t prosecute anybody in four days; you can’t convict them in four days,” Judge Sidney Thomas said. “Why do you need these four days to complete your tasks?”
DOJ attorney Gabriel Schonfeld replied that he couldn’t give specifics of any investigation and asked for a narrower bar that would only apply to naturalized citizens.
“The government can’t tell today what conduct would result in contempt, the government is being chilled,” Schonfeld said.
Earlier in the hearing Judge Kim McLane Wardlaw highlighted the unreliability of the data being used to target people. A whistleblower report to Congress last month said that U.S. Citizenship and Immigration Services’s search for evidence of noncitizen voting swept in foreign-born citizens without reliable data on whether they had voted prior to their naturalization.
“That’s not really in debate that naturalized citizens are being targeted, and plaintiffs are fearful of that,” said Hayden Johnson, the attorney representing the California Nurses Association, the San Francisco city and county governments, Santa Clara County, National Nurses United and the Voto Latino Foundation.
A different panel of the same appellate court this week dismissed another emergency request from the Trump administration, which is seeking the sequestering of 20,000 mail ballots from people suspected of voting without citizenship.
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