Full 9th Circuit wipes out panel win for DOJ on noncitizen ballots

The Ninth Circuit giveth, and the Ninth Circuit taketh away. A three-judge panel handed the Justice Department a 2-1 win on the noncitizen-ballot fight. The full court then vacated it and ordered a rehearing, according to The Epoch Times and PJ Media.

The panel had stayed a restraining order issued Oct. 30 by U.S. District Judge Trina Thompson in a suit brought by labor unions. Her order barred the federal government from threatening election officials with prosecution over counting ballots from people it deems ineligible. It also barred requiring officials to remove voters from the rolls or deny ballots to specific voters. Thompson found the administration likely violated the Voting Rights Act and likely exceeded its authority under the Elections Clause. The order was set to expire Nov. 16, The Epoch Times reported.

Judges Carlos Bea and Consuelo Callahan formed the majority. Bea wrote: "At most, plaintiffs fear a possibility of a future prosecution." Judge Mary Murguia dissented.

Then the full court stepped in. PJ Media reports an 11-judge panel will rehear the case and that the restraining order is back in effect while that happens. No rehearing date has been announced in the reports we reviewed.

CBS News' live coverage separately logged a Ninth Circuit action on the case Tuesday afternoon. We couldn't confirm the details of that entry, so we're not relying on it here.

Our take: Maybe it's routine. But a panel ruling that stood for a matter of hours before the full court wiped it out, on the eve of Election Day, is the kind of speed that deserves questions. We think a single district judge's restraining order, one that limits what the federal government can say to election officials, shouldn't be restored this fast on the basis of fear of "a possibility of a future prosecution" - the panel majority's own words. That is our opinion about the court's handling, not a claim about anyone's motives. The rehearing is where this gets decided.

The Supreme Court also turned away the DOJ's request in the separate California case over about 20,000 disputed mail ballots, as we reported earlier today.