“Confirmed Judges, Confirmed Fears” is a blog series documenting the harmful impact of President Trump’s judges on Americans’ rights and liberties. It includes judges nominated in both his first and second terms.
What’s at stake in this case?
Trump judges approved Trump Justice Department threatening state election officials in California and Washington if they did not “sequester” ballots cast by individuals who DOJ believed may not be citizens.
What happened in this case?
The NAACP, SEIU, and others filed suit to prevent the threats. The district court granted a temporary restraining order against the government, but a three-judge panel of the Ninth Circuit issued a stay pending appeal that allowed DOJ to proceed with its conduct against state officials. George W Bush judges Consuelo Callahan and Carlos Bea wrote that DOJ’s actions were legal and did not interfere with the states’ authority to administer elections. Obama nominee Mary Murguia dissented and wrote that DOJ had “no right” to dictate election procedures to the states or to subject election officials to “baseless – but chilling – threats of prosecution.”
Early in the morning of Election Day, the Ninth Circuit temporarily halted the stay granted by the three-judge panel. Continuing the “legal whiplash,” and led by Trump judges, however, a 6-5 majority of the en banc panel reinstated the three-judge panel ruling, allowing DOJ to proceed in its efforts to coerce local officials. Specifically, in SEIU v DOJ, five Trump judges (Miller, Bennett, Lee, VanDyke, and Tung) joined Judge Bea in reinstating the three-judge opinion in favor of DOJ. Judge Murguia led five judges in dissenting. Although there was no majority opinion, Trump judges Miller and Bennett wrote a concurring opinion claiming that DOJ was simply “expressing its views” about the legality of possible state election-related action.
Why did Judge Murguia dissent?
As she had done in dissenting from the earlier three-judge order, Judge Murguia and her four colleagues strongly disagreed with the majority view. She explained that as in another case where an order was issued just a week ago where the federal government was prevented from mandating that California officials set aside some 20,000 ballots that DOJ contended could have been cast by non citizens, the current “requests” were made “on pain of” possible DOJ prosecution, and had no proper legal basis. Its current “request” that officials sequester such ballots was unauthorized and improper.
Why is this decision harmful?
The longer-term consequences of the Trump judge decision to reinstate the three-judge court ruling remain unclear. At the very least, however, it contributed to confusion on Election Day and undermined the principle that, as Judge Murguia put it, “the federal executive has no right to dictate election procedures to the states.” The decision also illustrates the importance of our federal courts to health, welfare and justice and the significance of having fair-minded judges on the federal bench.