A federal judge bars the Justice Department from threatening election workers over ballots, four days before the vote

The third court fight in a week over how the federal government polices this election ended, for now, against the government. On Friday evening, Judge Trina L. Thompson of the Northern District of California granted a temporary restraining order in Service Employees International Union v. United States Department of Justice, a case filed the same week by the SEIU, the American Federation of State, County and Municipal Employees, the League of United Latin American Citizens and the NAACP. Thompson ruled without hearing the department's side first, citing the speed of the calendar. Ballots have already been issued, she wrote. Americans have already begun voting. Workers have already begun processing ballots.

The order is specific about what stops. Until 5 p.m. on November 16, the Justice Department and the Department of Homeland Security may not pressure election workers to stop processing a registered voter's ballot solely because the government alleges that voter is ineligible. They may not demand, on that basis, that officials purge specific voters, refuse them ballots or set their ballots aside. They may not threaten workers with prosecution for refusing those demands, or for counting ballots as state and federal law direct. The departments must notify every state, county and local government that received one of their ballot letters that the demands and the threats behind them are enjoined, and the Justice Department must disclose any pending search warrant applications or grand jury subpoenas tied to its voter lists. Thompson called the threats contrary to law and arbitrary and capricious, and wrote that the plaintiffs are likely to succeed on the merits.

The letters behind the case went wide. The Justice Department wrote to election officials in 57 of California's 58 counties demanding cooperation in identifying noncitizens on the rolls, with a warning of significant federal scrutiny for officials who did not comply, and this week it wrote to officials in all 50 states about preserving election records. The department demanded that California set aside about 20,000 ballots and Washington 405, and prosecutors subpoenaed Los Angeles County election workers to a grand jury. On Wednesday a different federal judge refused the department's bid to set aside the 20,000 California ballots, and on Friday a 9th Circuit panel kept the block on the department's door to door voter initiative in nine states.

The order does not touch the underlying question of who is on the rolls lawfully. It does not stop the department from investigating or prosecuting any individual voter it believes voted illegally, and Homeland Security Secretary Markwayne Mullin said on Friday that his department has flagged more than 300,000 noncitizens on state voter rolls, up from 250,000 in July, while conceding he cannot yet say how many of them voted. What the order decides is narrower and, for the people who run polling places, immediate: for the next two weeks, counting ballots under the normal rules cannot be treated as a crime by the federal government. The department's written response is due at noon on Monday, a preliminary injunction hearing is set for November 13, and an appeal can come at any point in between.