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UPDATENinth Circuit again refuses to make California set aside 20,000 ballots
A 2-1 panel rules the Justice Department's emergency request would violate the Elections Clause; a Supreme Court appeal is expected
SAN FRANCISCO — The U.S. Court of Appeals for the Ninth Circuit on Friday rejected, 2-1, the Justice Department's second emergency request to make California segregate mail ballots from about 20,000 voters the government calls likely noncitizens. The suit, filed Oct. 15, seeks to stop those ballots being counted in the Nov. 3 midterms. Judges Mark Bennett and Gabriel Sanchez said the remedy would not merely set ballots aside but could lead to ballots being cancelled and voters removed from the rolls. They also found it conflicted with the Elections Clause. Judge Patrick Bumatay dissented, calling the request reasonable. A district judge had ruled against the government on Wednesday. The panel had earlier refused emergency relief on Monday on procedural grounds. California officials say the federal list is unreliable and that no proof of noncitizenship has been supplied. The Justice Department is expected to ask the Supreme Court next.
Why it mattersWith days left before the midterms, the ruling leaves California's count undisturbed unless the Supreme Court steps in.
Federal judge bars DOJ and DHS from pressuring election officials over ballots
N.D. California issues a temporary restraining order, without hearing from the government, that runs through Nov. 16
SAN FRANCISCO — U.S. District Judge Trina Thompson of the Northern District of California on Friday issued a temporary restraining order against the Justice Department and Department of Homeland Security. The suit was brought by SEIU, AFSCME, LULAC and the NAACP, who name Attorney General Todd Blanche among the defendants. The order bars the agencies from demanding that election officials in any state halt ballot processing, segregate or reject ballots, or purge voters solely because the government alleges the voters are ineligible. It also bars threats of criminal prosecution for refusing. Thompson found the plaintiffs likely to succeed on a Voting Rights Act Section 11(b) intimidation claim and that the government likely exceeded its Elections Clause authority. She ordered the government to disclose pending search-warrant applications and grand jury subpoenas. DOJ's response is due Nov. 2, and a hearing is set for Nov. 13. An emergency appeal is possible.
Why it mattersThe order puts a court-enforced limit on federal pressure on vote counters in the final days before the election.
Full Fifth Circuit rules detained immigrants have no constitutional right to bond hearings
A 10-7 en banc decision reverses a July panel ruling; the statutory question is already before the Supreme Court
NEW ORLEANS — The full U.S. Court of Appeals for the Fifth Circuit ruled 10-7 on Oct. 23 that immigrants who entered without being lawfully admitted have no constitutional right to individual bond hearings while their removal cases proceed. The decision reversed district court orders that had freed three long-term Texas residents. It also vacated a July panel ruling that required a hearing after 90 days of detention. The ruling applies in Texas, Louisiana and Mississippi, which together hold many of the country's immigration detainees. The majority said due process does not require procedures beyond those Congress provided. Seven judges dissented. A separate Supreme Court case this term asks whether the federal mandatory-detention statute itself requires bond hearings. That case does not decide the constitutional question the Fifth Circuit addressed. Judges nationwide have ruled against no-bond detention more than 21,000 times in the past year, according to The New Republic.
Why it mattersThe ruling deepens a circuit split on mandatory ICE detention that the Supreme Court is likely to resolve.
Sixth Circuit upholds federal ban on guns for those 'adjudicated mentally defective'
Panel rejects a facial Second Amendment challenge, citing the defendant's armed trip to Fort Knox
CINCINNATI — The U.S. Court of Appeals for the Sixth Circuit, whose territory includes Tennessee, has held that the federal ban on firearm possession by anyone adjudicated as a mental defective does not violate the Second Amendment on its face. The panel reasoned that a statute survives a facial challenge if it can be applied constitutionally in some circumstances. It found this defendant was one such case. He could have petitioned under Missouri law to have his gun rights restored. Instead, according to the court, he drove to Fort Knox wearing body armor and carrying eight guns. The ruling is described in the Volokh Conspiracy's Short Circuit roundup of federal appellate decisions this week. The case name was not given there, and the opinion itself was not independently reviewed. The decision adds to appellate rulings applying the Supreme Court's Bruen and Rahimi framework to the federal prohibited-person categories.
Why it mattersFor Tennessee litigators, it signals how the circuit is treating facial challenges to the federal prohibited-person statutes.
