The James R. Browning U.S. Court of Appeals Building in San Francisco, headquarters of the Ninth Circuit, which refused to pause the injunction on DHS voter investigations. U.S. General Services Administration photo (public domain).
DHS voter investigations will stay off the doorsteps of suspected U.S. citizens in nine states through Election Day after the Ninth Circuit on Oct. 30 refused the administration’s request to pause a lower-court injunction. The published per curiam order, from Judges Sidney R. Thomas, Kim McLane Wardlaw and Anthony D. Johnstone, leaves the block in place until polls close Nov. 3, but the same day the court’s clerk disclosed that an unnamed Ninth Circuit judge had asked for a vote on rehearing the case en banc.
The order in California Nurses Association v. Mullin, No. 26-7139, matters for a narrow but sensitive group: naturalized citizens whose immigration files show them as noncitizens at some earlier date, and the volunteers, union members and church workers who help people register and vote. It also shows how the court views the government’s timing.
The panel turned the government’s own calendar against it
A stay pending appeal turns on four factors, and the Ninth Circuit treats irreparable harm as a threshold the government must clear before the others count. The panel decided the motion on that ground alone and did not rule on whether the plaintiffs are likely to win under Section 11(b) of the Voting Rights Act, the anti-intimidation provision the district court relied on when it issued the injunction on Oct. 21.
DHS argued that the order intrudes on executive enforcement power and could deter Homeland Security Investigations agents from doing their jobs. The panel answered that an institutional injury to the separation of powers is not irreparable and that the government offered no evidence field work was impossible under the injunction’s limits. It then pointed to the timing of DHS’s “Surge” operations, which the order dates to guidance issued Aug. 31. Because the investigations concern votes allegedly cast in past elections, the judges wrote, nothing prevented DHS from pursuing them “more deliberately, with less haste, and distanced from the current election.”
The sharpest line addressed the election itself: “Defendants’ delay in beginning the Surge has rendered it no longer practicable to prosecute anyone they could identify before Election Day.” The panel added that the government waited four days to seek a stay and never explained why another four and a half days of limits would cause lasting harm when the program “can resume on November 4, 2026.” The order also says DHS General Counsel James Percival “seems to agree” that the government faces minimal injury.
What the injunction covers and what DHS can still do
The injunction bars elections-related field operations and interviews in California, Connecticut, Georgia, Missouri, Nevada, New York, Pennsylvania, Washington and Wisconsin that involve people agents know, suspect or should reasonably suspect are U.S. citizens. It also bars field operations based wholly on TECS records generated by DHS’s voter eligibility matching process. Records checks, investigations of people DHS believes are noncitizens, and criminal prosecutions are untouched. So is the separate fight over California mail ballots, which the Justice Department has lost three times in a week.
The order explains why naturalized citizens sit at the center of the dispute. It describes source data that may include “potentially 8.5 million records with inaccurate citizenship status,” quotes the district court’s finding that there is no federal database of U.S. residents’ citizenship, and notes that USCIS staff were expected to complete at least 40 profile reviews a day, with about 12 minutes for each. An immigration file captures status on a given date, so a citizen who voted after taking the oath can look like a noncitizen voter to a match that reads an older record. That same weakness underlies the newer lawsuit seeking to end the Unlawful Voter Initiative altogether.
On standing, the panel accepted declarations from four citizen members of the California Nurses Association and National Nurses United who said they had pulled back from election work, including one who will no longer serve as a poll watcher. “Plaintiffs fear something that has already begun happening to people like them,” the court wrote.
An en banc call with four days left
The clerk’s order directed both sides to file briefs by 5 p.m. Pacific time on Oct. 30 on whether the full court should rehear the case. A sua sponte call does not mean a majority of active judges wants rehearing. With the injunction set to expire on its own when polls close, the practical window for any en banc action, or for an emergency application to the Supreme Court, is a matter of days. Because the panel designated its order for publication, the larger stakes may lie in what it says about standing for voter-intimidation claims, which the government is likely to keep contesting after Nov. 3 in its appeal of the injunction.
For naturalized citizens in the nine states, agents may not knock on their doors over voter eligibility until polls close. What happens on Nov. 4 depends on how DHS resumes, and on courts that have also weighed the role of FBI and ICE staff at polling places.
This article is for general information and is not legal advice.
Sources
- U.S. Court of Appeals for the Ninth Circuit, order denying stay pending appeal, California Nurses Association v. Mullin, No. 26-7139 (Oct. 30, 2026)
- Ninth Circuit clerk’s order on sua sponte en banc request, No. 26-7139 (Oct. 30, 2026)
- U.S. District Court for the Northern District of California, order granting preliminary injunction, No. 26-cv-10680-AMO (Oct. 21, 2026)
- 52 U.S.C. 10307, Voting Rights Act Section 11
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