A federal appeals court panel on Thursday gave the Trump administration a rough reception as it asked to restart a controversial immigration crackdown on alleged illegal voting in the final days before the 2026 midterm elections, repeatedly pressing government lawyers on why armed field investigations of voters cannot simply wait until after Americans have voted. The ICE voter crackdown, known inside the Department of Homeland Security as the Unlawful Voter Initiative, has been blocked since October 21, when a California district judge found the operations were producing “ongoing intimidation” and barred them in nine states.
The hearing, before a three-judge panel of the 9th US Circuit Court of Appeals in San Francisco, did not produce a ruling. But the tone of the questioning left little doubt about where at least two of the three judges were leaning: the panel signalled it was unlikely to let the Department of Homeland Security resume the crackdown, according to court reporting of the session, with judges questioning both the faulty data behind the operation’s target lists and the made-for-social-media style in which its raids have been publicised.
The Justice Department went to the 9th Circuit on an emergency basis, asking the panel to let the Department of Homeland Security and Immigration and Customs Enforcement resume field investigations that a district court halted last week. The investigations are the street-level arm of the administration’s wider campaign against alleged noncitizen voting: agents confront people at their homes and in their cars, question them about their citizenship and voting status, and in some encounters pull them out, shackle them and arrest them, with film crews along to capture the footage.
That footage matters to the case, and it dominated much of Thursday’s hearing. The clips — armed, masked agents pulling people from their homes, sometimes in their pyjamas, then posting the encounters online — are, the challengers say, not a by-product of the programme but a central part of it. A Department of Homeland Security memo entered into evidence describes an online portal set up so agents can immediately upload photos and clips of their often-violent encounters with suspects, a system the plaintiffs’ lawyer said the department had never operated before.
Justice Department lawyer Gabriel Schonfeld argued the injunction was wrong on any time frame. “The injunction would be improper on any time frame,” he told the panel, and he warned of a broader harm to the government itself: “The government is facing a far broader chill than just the relatively narrow set of investigations that are into naturalized citizens predicated on pre-naturalization conduct.” He was frank, court reporting noted, that the looming election was one reason the administration considers it urgent to be able to pursue the enforcement effort in the coming days.
“The government has every interest, and it’s a serious interest, an irreparable one, to not be wrongfully enjoined in pursuing these sorts of crimes in the run-up to an election,” Schonfeld said. But when Judge Sidney Thomas pressed him on what, concretely, the investigations could achieve before Tuesday, Schonfeld could not point to a specific outcome. “I can’t speak to the specifics of what might happen in any given investigation, your honor,” he answered.
The lawsuit behind the injunction was filed in September by pro-voting groups together with the city of San Francisco and Santa Clara County, California. The plaintiffs argue the field investigations are voter intimidation dressed up as fraud enforcement, and that they discourage participation by naturalized citizens who are fully entitled to vote. Members of the California Nurses Association and the Voto Latino Foundation, two of the groups behind the suit, say the stings are already interfering with their members’ voter-mobilisation work, such as promoting early voting and registering new voters, because even eligible voters fear being swept up in hostile dragnet operations.
On October 21, a district judge agreed, at least for now. The ruling found the investigations contributed to “ongoing intimidation,” prohibited the Department of Homeland Security and ICE from continuing the operations in nine states, and barred the use of target lists assembled from databases the court considered flawed. The injunction was written to run until after Election Day, a deliberate choice by the district court: let the election happen first, and let any prosecutions follow.
The administration appealed, and the case landed before Judges Sidney Thomas, Kim Wardlaw and Anthony Johnstone. Thomas and Wardlaw were both appointed by President Bill Clinton; Johnstone was appointed by President Joe Biden. The panel heard the government’s emergency request on Thursday, four days before Election Day, with early voting already under way across the country and more than 43 million ballots already cast nationally, according to University of Florida Election Lab data reported by the BBC on Friday.
The dispute sits inside a much larger election-season fight over who votes and who gets to police the rolls. The administration has pressed state election officials in all 50 states with warnings that they could face criminal prosecution if they knowingly allowed noncitizens to remain on the rolls or cast ballots, and it has pursued separate court action in California seeking to set aside ballots from more than 20,000 people it flagged as likely noncitizens — an effort a federal judge rejected this week and the administration has appealed. In a separate case, a Washington judge this week ordered the administration to disclose which states received demands to change election procedures. And in an October 28 court filing, the administration stated that neither ICE nor FBI agents will serve as federal poll monitors during the 2026 midterm elections.
Two concessions, as described by the judges themselves, frame the government’s difficulty in the case. First, the judges said the Department of Homeland Security conceded it had relied on faulty data to choose whom to target. The district court had already barred the use of target lists assembled from databases it considered flawed, and the appeals panel returned to that point during the hearing. Second, the judges said officials acknowledged specifically targeting naturalized citizens in order to root out potential fraud committed before their naturalization — that is, investigating people who are now US citizens for conduct alleged to have occurred before they became citizens.
That targeting is the heart of the plaintiffs’ intimidation argument. The operations do not, in their account, resemble quiet criminal investigations. They arrive with cameras, they are edited into clips for social media, and they land hardest on a community — naturalized citizens — that is entitled to vote but, the plaintiffs say, is now being taught to fear contact with the federal government during voting season. Their lawyer, Hayden Johnson, put the point bluntly to the panel: “We have to establish that there is an objectively reasonable fear arising from the defendant’s conduct and threats, and that voters … are taking steps to mitigate their risks. That’s what plaintiffs have done here, and that’s sufficient.”
“The fear is the harm. That harm is ongoing,” Johnson said, arguing that get-out-the-vote efforts are already meeting resistance attributable to the enforcement campaign. The social-media videos, he said, are “a key part of the program.” Pointing to the department memo about the upload portal, he told the court: “That is something that DHS has never done before. That’s a totally new system set up just for this purpose. The goal is to send a signal during the voting period. This isn’t DHS doing … banal investigations of the vanishingly rare incidents of non-U.S. citizens wrongly participating in elections. This is as loud as possible, and that has a serious chilling effect and intimidating effect on voters.”
Noncitizen voting in federal elections is illegal, and the administration says the initiative pursues real crimes. The Justice Department’s counter-argument is that the possibility of intimidating lawful voters is too remote to justify a court order, and that the government should not be barred from investigating suspected offences in the run-up to an election. That argument, however, ran into the panel’s most repeated question of the day: what, exactly, would be lost by waiting four days?
Judge Thomas returned to the timing question again and again. “So, why is the rush? … What’s the irreparable harm for four days to, as the district court said, let the elections occur, and then … if you want to prosecute later, fine,” he asked. When Schonfeld did not give a concrete answer, Thomas pressed further: “What do you need in the next four days? What are you prevented from doing in the next four days? You can’t prosecute anybody in four days. You can’t convict them in four days. Why do you need this?”
Judge Wardlaw focused on the publicity. “I’m wondering where the PR aspect of this fits in,” she said, “because it seems what you’re publicizing — militarized people with masks on pulling people out of the house, and the people wearing their pajamas — I mean, isn’t part of this that the program, or whatever it’s called, ‘initiative,’ has an aspect of it that seemingly actually wants to intentionally make an effort to instill fear?”
The government’s answers did not close that gap. Schonfeld maintained the injunction was improper on any time frame, and argued the government’s interest in not being wrongfully barred from pursuing crimes before an election was itself serious and irreparable. But he also conceded, in the exchange with Thomas, that he could not speak to what any particular investigation might produce in the next four days — a concession the plaintiffs are likely to quote back if the panel rules against the government.
The challengers, for their part, made no secret of what they think the programme is for. Johnson’s argument was that the intimidation is not an accident of aggressive tactics but the mechanism itself: voters see the videos, learn that the initiative is aimed at naturalized citizens, and stay away from the polls or from voter-mobilisation work. “The fear is the harm,” he said, and on that theory the harm is not hypothetical or future — it is happening now, while voting is under way.
The case matters for three reasons, and the first is the calendar. The midterms are on Tuesday, November 3, and control of Congress is at stake. Any ruling that lets armed federal agents resume street-level voter investigations in the final days of voting would land in the middle of the largest remaining window of in-person early voting, in states where millions of ballots have already been cast but millions more remain to be cast. Any ruling that keeps the block in place does the opposite: it tells voters that the courts, for now, have drawn a line between investigating crime and policing the electorate during an election.
The second reason is the precedent. The panel is being asked to decide how much deference immigration enforcement deserves when it overlaps with voting, and how courts should weigh a claimed chilling effect against a claimed law-enforcement interest. If the government wins, the decision would bless pre-election field operations built on contested data and publicised through social media — a template other administrations could reuse. If the challengers win, the decision would mark one of the clearest judicial statements yet that the manner of enforcement, not just its target, can itself be an unlawful burden on voting.
The third reason is the data. The judges’ statement that the department conceded faulty data in choosing targets goes to the credibility of the entire noncitizen-voting campaign. Target lists matter because they decide who gets a knock on the door. If those lists were built from databases the courts consider unreliable, then the people confronted may include citizens whose only offence was appearing, wrongly, on a government spreadsheet — and the programme’s public justification, that it pursues proven illegal voting, weakens considerably.
The panel could rule at any time, including before Election Day, and its ruling will decide whether the injunction stands or falls. If the panel sides with the administration, the Department of Homeland Security and ICE could resume the field operations in the nine states in the final days before Tuesday — the exact outcome the district court sought to prevent, and the exact scenario the plaintiffs warn would chill turnout. If the panel sides with the challengers, the block stays in place through the election, and the government’s remedy, as Judge Thomas put it, is to prosecute later.
Either way, the underlying lawsuit continues. Thursday’s hearing concerned only the emergency request to lift the preliminary injunction, not the final merits of the case, and a loss for either side this week does not end the litigation. Watch also for the companion election-law fights moving on parallel tracks: the Washington disclosure order over which states were pressed to change procedures, the administration’s appeal of the California ballot ruling, and a Texas lawsuit in which state Republicans seek to delay certification of the midterm results until the dependability of electronic tabulation systems is established. Each of those cases could produce rulings before or shortly after November 3.
For voters, the practical point is narrower and more immediate. The injunction is in force now, and it runs until after Election Day unless the 9th Circuit says otherwise. Voters who encounter federal agents asking about citizenship or voting status, or who see enforcement operations near a polling place or early-voting site, can report the encounter to local election officials and to the voting-rights groups behind the lawsuit, who have said such reports form part of their evidence. And the administration’s own October 28 filing offers one reassurance: neither ICE nor FBI agents will serve as federal poll monitors in this election.
What is the Unlawful Voter Initiative? It is the Department of Homeland Security’s name for a field-enforcement campaign in which federal agents confront people suspected of voting or registering to vote illegally, in nine states, and film the encounters for social media. The Trump administration says it pursues illegal voting; challengers say it intimidates naturalized citizens.
What did the district court do on October 21? It blocked the operations in nine states, finding they contributed to “ongoing intimidation,” and barred the use of target lists assembled from databases the court considered flawed. The injunction was set to run until after Election Day.
What happened at the 9th Circuit hearing on October 29? A three-judge panel heard the Justice Department’s emergency bid to lift the block. Judges Sidney Thomas and Kim Wardlaw pressed the government on why the probes must resume days before the election and on the role of publicised, militarized tactics. No ruling was issued at the hearing.
Why did the judges focus on four days? Because the hearing took place four days before Election Day. Judge Thomas argued that no prosecution or conviction could be completed in that time, so the government loses little by waiting — while voters, the challengers say, lose a great deal if enforcement resumes during voting.
What happens if the panel lifts the injunction? The Department of Homeland Security and ICE could resume the field investigations in the nine states in the final days before November 3. If the panel keeps the block, the operations stay halted through the election and any prosecutions would have to wait until afterwards.
Related coverage on US News Pulse: a judge's order forcing the administration to name every state pressed over noncitizen voting, Pope Leo XIV's historic mail-in vote in the US midterms, the unmasking of the group behind mystery transgender mailers in Texas.
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