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Ninth Circuit leaves block on DHS pre-election voter operations in place

Ninth Circuit leaves block on DHS pre-election voter operations in place

Rule Changes

A full-court vote fails, seven judges dissent, and the block holds through Election Day as the appeal continues

November 3rd, 2026: Election Day passes with block still in place

Overview

Updated 5 days ago

The Ninth Circuit kept its block on Homeland Security's pre-election voter questioning in place through Election Day, and the legal fight is continuing. A majority of the full court declined to rehear a three-judge panel's refusal to pause the injunction; seven judges dissented. The blocked program, which the government calls the Unlawful Voter Initiative, had sent agents to homes in nine states.

The broader federal voter-fraud push did not stop when the polls closed. Federal prosecutors in California sent criminal subpoenas to election officials in Sonoma and Santa Clara counties, seeking information about alleged noncitizen voters and records on how the counties handled earlier Justice Department requests. The DHS operation remains barred while the appeal proceeds.

Why it matters

A federal court can stop a voter-fraud operation before an election, but the legal fight continues after the ballots are counted.

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Key Indicators

9
States covered by the injunction
California, Connecticut, Georgia, Missouri, Nevada, New York, Pennsylvania, Washington and Wisconsin.
7
Judges dissenting from the en banc denial
Six Trump appointees and one Bush appointee, with Judge Eric Tung writing.
3
Judges on the panel that refused the stay
The panel upheld the district court's injunction on October 30.
Nov 3
Election Day passed with block in place
Polls closed with the injunction still in effect; the appeal continues.

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People Involved

Araceli Martínez-Olguín
Araceli Martínez-Olguín
U.S. District Judge, Northern District of California
Issued the preliminary injunction on October 28, 2026
 Eric Tung
Eric Tung
Judge, U.S. Court of Appeals for the Ninth Circuit
Wrote the dissent from the denial of en banc review
 Kim McLane Wardlaw
Kim McLane Wardlaw
Judge, U.S. Court of Appeals for the Ninth Circuit
Sat on the three-judge panel
ST
Sidney Thomas
Judge, U.S. Court of Appeals for the Ninth Circuit
Sat on the three-judge panel
 Markwayne Mullin
Markwayne Mullin
Secretary of Homeland Security
Named defendant in the lawsuit
 Beau Tremitiere
Beau Tremitiere
Attorney, Protect Democracy
Represents the plaintiffs

Organizations Involved

Department of Homeland Security Investigations
Department of Homeland Security Investigations
Federal Agency
Its field operations were blocked through Election Day; the appeal continues

The agency whose Homeland Security Investigations agents carried out the door-to-door voter inquiries.
Department of Justice
Department of Justice
Federal law enforcement agency
Defended the program on appeal; prosecutors continue voter-fraud inquiries

The agency that argued the injunction harmed the government's interest in pursuing voter fraud.
U.S. Court of Appeals for the Ninth Circuit
U.S. Court of Appeals for the Ninth Circuit
Federal appellate court
Kept the injunction in place through Election Day; the appeal continues

The appellate court that declined to rehear the stay request before the full bench.
Protect Democracy
Protect Democracy
Legal advocacy group
Represents plaintiffs challenging the program

The group whose attorneys argued the DHS operation amounted to voter intimidation.

Timeline

September 2026 November 2026

8 events Latest: November 3rd, 2026 · 1 week ago
Tap a bar to jump to that date

  1. Election Day passes with block still in place

    Latest Election

    The Ninth Circuit's injunction remained in effect as voters went to the polls.

  2. Federal prosecutors subpoena California county election officials

    Legal

    Prosecutors in the Bay Area demanded information about alleged noncitizen voters and internal records on earlier Justice Department requests, the Los Angeles Times reported.

  3. Three-judge panel refuses to lift injunction

    Legal

    The panel says the government's delay and timing undercut its claim of irreparable harm.

  4. Full Ninth Circuit declines en banc review

    Legal

    Not enough judges vote to rehear the stay; seven dissent, led by Judge Tung.

  5. Panel hears emergency stay request

    Legal

    Judges Wardlaw and Thomas question the timing and the data behind the surge.

  6. District court blocks operations in nine states

    Legal

    Judge Martínez-Olguín bars elections-related field operations and interviews through Election Day.

  7. Groups and local governments sue DHS

    Legal

    California Nurses Association, San Francisco, Santa Clara County, National Nurses United and the Voto Latino Foundation sue over the door-knocking.

  8. Whistleblower flags flawed citizenship data

    Investigation

    A report to Congress says a Citizenship and Immigration Services search swept in foreign-born citizens without reliable voting records.

Scenarios

1

Supreme Court stays the injunction before polls close

Deadline passed (Nov 3, 2026)

Discussed by: Legal observers tracking the government's emergency appeals

The Justice Department could ask the Supreme Court for an emergency stay, arguing the lower courts have stripped it of authority to investigate voter fraud days before an election. The Court would need to act fast: the injunction expires on its own when polls close November 3.

2

Injunction lapses and DHS resumes operations after the election

Likely Resolves by End of 2026

Discussed by: Plaintiffs' attorneys and the district court record

The injunction is tied to the election calendar, not the merits. Once polls close, the stated rationale for the block disappears, and DHS could restart field operations unless the district court extends its order. The plaintiffs would likely return to court to seek a longer pause.

3

Ninth Circuit affirms the injunction on the merits

Possible Resolves by Q2 2027

Discussed by: Election law scholars and the plaintiffs' legal team

The government's appeal of the preliminary injunction continues on the merits. If the Ninth Circuit agrees that the operation likely violated the Voting Rights Act's ban on voter intimidation, the block could outlast the election and constrain similar programs in the future.

Historical Context

2 moments from history that rhyme with this story — and how they unfolded.

August 1965

Voting Rights Act (1965)

Congress passed the Voting Rights Act to dismantle barriers that kept Black Americans from voting. Section 11(b) barred anyone from intimidating, threatening or coercing voters, and it allowed private parties to sue. The provision has since been used against practices that fall short of outright violence but still discourage participation.

Then

Federal examiners and preclearance requirements transformed voter registration across the South within a few years.

Now

Section 11(b) remains the main federal tool for challenging pre-election intimidation, and it is the statute at the center of this case.

Why this matters now

The district court found the DHS operation likely violated Section 11(b), making this case a modern test of how far the intimidation ban reaches.

1982-1987

Democratic National Committee v. Republican National Committee (1982)

A federal court approved a consent decree restricting the Republican National Committee's 'ballot security' operations, which Democrats said targeted minority voters. The decree required court approval for certain poll-watching and mail-in voter programs. It was extended in 1987 and remained in force for decades.

Then

The RNC operated under court supervision for the 1980s and 1990s.

Now

The decree expired in 2018, but courts still cite its logic when weighing whether pre-election programs intimidate voters.

Why this matters now

It is the closest federal precedent for a court supervising pre-election enforcement tactics, which is what the Ninth Circuit has now done through Election Day.

Sources

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Bloomberg Law Election Law Blog DNYUZ The Washington Sun National Immigration Law Center POLITICO The Hill Campaign Legal Center Los Angeles Times Law360 Executive Functions Bloomberg Law