SEIU v. DOJ: four Ninth Circuit orders in 24 hours, and the stay of the order barring DOJ prosecution warnings stands

By E. Lawrence Anderson, Yellow Jacket Initiative

Update, Thursday, November 5, 2026. This post said a November 13 preliminary-injunction hearing was still set. That was accurate when it was written. On Wednesday, November 4, Judge Trina L. Thompson vacated the hearing. Her order (Dkt. 78) reads: "Until further notice from the Ninth Circuit, the Court stays the current proceeding. The hearing set for November 13, 2026, is hereby VACATED." The parties are excused from the briefing schedule set on November 2, and the plaintiffs' request for more time is "denied as moot."

The order's reason is jurisdictional. It says the Ninth Circuit "determined that this Court lacks jurisdiction to modify its Temporary Restraining Order," and that the appeals court "is still considering the merits of Plaintiffs' arguments as to the TRO, and those merits are inextricably tied to the proceedings in this Court." Proceeding now, the order says, quoting a 1982 Supreme Court decision, would risk the two courts attempting to assert jurisdiction "over a case simultaneously." The order does not decide the merits. It says the plaintiffs "are not without a forum" and may ask the Ninth Circuit itself for an injunction: "If the Ninth Circuit determines that the Court should proceed ... the Court will lift its stay."

Where things stand: the October 30 restraining order remains stayed by the Ninth Circuit (No. 26-7303), and the district court will not take up the preliminary injunction until the Ninth Circuit says otherwise. As of Thursday evening, November 5, we found no district-court entry after Dkt. 78 and no Ninth Circuit entry after the November 3 rehearing denial, on CourtListener's RECAP mirror, which can lag the courts' own system. Source: Dkt. 78 (order of November 4). The original text below is unchanged.

As of Wednesday, November 4, 2026, about 9:30 a.m. ET. Primary sources: the Ninth Circuit's orders and filings in SEIU v. U.S. Department of Justice, No. 26-7303 (Dkts. 24, 31, 32, 35, 38 and 39); the district court's Nov. 2 order, N.D. Cal. No. 3:26-cv-12800 (Dkt. 63); and the Nov. 3 minute order and plaintiffs' supplemental brief in OneAmerica Votes v. Trump, W.D. Wash. No. 2:26-cv-04223 (Dkts. 17 and 18). Dockets were read from CourtListener's RECAP mirror, which can lag the courts' own system. Docket times below are the times entries were docketed, Pacific. Every quotation below was checked against those texts.

The government's side, first. A Ninth Circuit panel held that the government is likely to win on two legal questions. First, section 11(b) of the Voting Rights Act, which bars intimidating or coercing people in connection with voting, "does not contain an express private cause of action"; the statute gives enforcement to the Attorney General. Second, on the Constitution's Elections Clause, the panel said it was considering "only whether the Government can make such a request in the first place," and found the Justice Department's letters to be "core Executive functions that did not actually disturb the states' regulation of their own elections." Judge Eric Miller, concurring, wrote that "many of the positions taken by the federal government in its recent communications to state election officials may have little merit," but that "a district court does not generally have the authority to enter an injunction prohibiting the Department of Justice from expressing its views about criminal statutes, even if the court determines that those views are incorrect."

What the stay does. On Friday, Oct. 30, Judge Trina L. Thompson of the Northern District of California entered a temporary restraining order, without a hearing, barring the government from further ballot-sequestration requests and prosecution "threats" to election officials over a federal list of people it says are likely noncitizens. It also required the government to notify every recipient of its letters that the demands had been enjoined, and to tell the court about pending warrant applications and subpoenas tied to the list. Our Oct. 31 post reported that order. It is now stayed by the court of appeals, pending further order of the court.

The sequence.

1. Monday, Nov. 2, docketed 7:45 p.m. (panel order, for publication). Judges Carlos Bea and Consuelo Callahan, over Chief Judge Mary Murguia's dissent: "The Government's motion is GRANTED." The panel treated the restraining order as a reviewable preliminary injunction because it ran seventeen days, required action by the government, and reached past Election Day. In a footnote it said the district court's attempt that day to shorten the order came after the government's appeal, when the district court "lacked the jurisdiction" to do so.
2. Monday, Nov. 2, docketed 10:23 p.m. Upon the vote of a majority of the court's nonrecused active judges, the case was ordered reheard en banc, and the panel order was vacated.
3. Tuesday, Nov. 3, Election Day, docketed 11:38 a.m. An 11-judge en banc panel: "A majority of the en banc court has voted to reinstate the three-judge panel's order." Judge Miller, joined by Judge Mark Bennett, concurred. Chief Judge Murguia and Judge Roopali Desai each dissented, joined by Judges Ronald Gould, John Owens and Holly A. Thomas and by each other.
4. Tuesday, Nov. 3, docketed 7:38 p.m. The plaintiffs asked the full court to rehear the en banc panel's order. The government replied that, to its knowledge, the court "has never previously granted that relief." The court's en banc coordinator then entered an order: "A majority of the nonrecused active judges did not vote in favor of full court rehearing en banc. Accordingly, the petition for full court rehearing en banc is denied. En banc proceedings with respect to the en banc panel's order are concluded."

The dissents. Chief Judge Murguia wrote that the court had held on Oct. 30, in United States v. California, that the federal government cannot compel state election officials to set aside their own procedures, and that the stay lets it do so "by threatening prosecution": "These two decisions cannot be reconciled." Election officials and workers, she wrote, "must choose between complying with two conflicting opinions of our court." She also noted that the Justice Department's own manual says it should not take "overt criminal investigative measures . . . involving alleged ballot fraud" until an election is over.

Judge Desai: "In the span of twelve hours in the middle of an ongoing election and on the literal eve of Election Day, our court issued three conflicting orders." The stay came "just after the polls open on Election Day." She wrote that the court should have considered alternatives, such as narrowing the order.

Judge Miller's answer on timing: if Purcell, the rule against late court changes to election rules, did not bar the overnight order vacating the stay, "then it is difficult to see how Purcell could bar this morning's order undoing that action."

What is still open. The district court case continues. On Monday, Nov. 2, Judge Thompson denied the government's request for a stay, called its appeal "premature," moved the order's end to Friday, Nov. 13, at 5:00 p.m. "with the consent of both parties," and modified one paragraph of it. The panel's footnote says she lacked jurisdiction to make those changes. We state both. Preliminary-injunction briefing: the government's opposition is due Monday, Nov. 9; the plaintiffs' optional reply Tuesday, Nov. 10; the hearing is set for Friday, Nov. 13, at 11:00 a.m. We found no Supreme Court application in the case as of Wednesday morning, and no Ninth Circuit entry after the Nov. 3 rehearing denial.

Related. In Seattle, in OneAmerica Votes v. Trump, Judge Jamal N. Whitehead wrote on Nov. 3 that the Ninth Circuit's order "bears directly on the relief Plaintiffs seek here" and directed the plaintiffs to brief its effect by Wednesday, Nov. 4, at 5:00 p.m. Pacific. The plaintiffs filed that brief on Nov. 3 (Dkt. 18). They argue that the SEIU order addresses only one of their claims, on a different record; that is their argument. The court had not ruled on their restraining-order motion as of Wednesday morning. Separately, on Nov. 2 a federal court in Washington, D.C. barred further transmission of the federal lists to election officials nationwide (League of Women Voters v. DHS). We do not infer how the orders interact.

Earlier: A federal judge temporarily bars DOJ and DHS from threatening to prosecute election workers who count listed voters' ballots (Oct. 31); Washington groups sue to stop a federal demand to hold about 405 ballots (Nov. 2).

Primary sources: SEIU v. U.S. Department of Justice, 9th Cir. No. 26-7303: Dkt. 24 (panel order and dissent, Nov. 2), Dkt. 31 (en banc order vacating, Nov. 2), Dkt. 32 (en banc order reinstating, with concurrence and dissents, Nov. 3), Dkt. 35 (petition for full-court rehearing), Dkt. 38 (government's response), Dkt. 39 (rehearing denied, Nov. 3); N.D. Cal. No. 3:26-cv-12800: Dkt. 63 (order of Nov. 2); W.D. Wash. No. 2:26-cv-04223: Dkt. 18 (plaintiffs' supplemental brief), Dkt. 17 (minute order, text only).

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