On 30 October 2026 the U.S. Court of Appeals for the Ninth Circuit denied the federal government’s motion for a stay pending appeal in California Nurses Association v. Mullin (No. 26-7139). The panel was Judges Sidney R. Thomas, Kim McLane Wardlaw and Anthony D. Johnstone. The ruling leaves in place a preliminary injunction that Judge Araceli Martínez-Olguín of the Northern District of California entered on 21 October (No. 4:26-cv-10680-AMO). She refused her own stay on 29 October.

What the injunction stops

Through Election Day, in California, Connecticut, Georgia, Missouri, Nevada, New York, Pennsylvania, Washington and Wisconsin, DHS and the other enjoined parties may not:

  • conduct elections-related field operations and field interviews “that involve or are likely to involve persons whom the Enjoined Parties know, suspect, or should reasonably know or suspect are U.S. citizens”; or
  • conduct elections-related field operations in those states “based wholly on TECS records generated from the Voter Eligibility Matching Policy” against such people.

The injunction does not stop DHS from investigating people it believes are noncitizens. It also does not reach DOJ prosecutions. The panel called it “a targeted injunction that focuses on operations against U.S. citizens and expires after voting concludes on November 3, 2026.”

The program, as the courts describe it

  • In June 2026, DHS’s General Counsel directed ICE to pursue stricter penalties, including deportation, against noncitizens believed to have registered or voted improperly. In August, DHS launched an “Unlawful Voter Initiative”. On 31 August, a “Surge Initiative Guidance” directed Homeland Security Investigations to prioritise field investigations in the nine states.
  • The district court found that the target-list data are “voluminous and unreliable”. It cites 48.2 million records received “through independent sources” and 50.6 million voter-roll records from DOJ, some taken from commercial voter files. The data are “enriched” through a system called iLab using AI tools.
  • USCIS asks reviewers to complete at least 40 reviews a day. Officers “generally have up to 12 minutes to determine if a subject is a U.S. citizen.” The district court found “a high likelihood of error in review because there is no federal database containing citizenship status of U.S. residents.”
  • The panel notes that TECS records have been created for U.S. citizens, according to a whistleblower disclosure released by Senators Schumer and Padilla. It also says the program had targeted at least 165 organisations, including non-profits and churches doing voter engagement, and that agents were told to document findings for “media and reporting”.

Of the plaintiffs, only the nurses’ unions (CNA/NNU), whose members help people register and vote, were found to have standing at this stage. The claim that went forward was voter-assistance intimidation under Section 11(b) of the Voting Rights Act.

Why the stay was refused

The panel held that the unions likely have associational standing. It found the government had not explained why it would be harmed by “another four-and-a-half-day limitation on their Surge operations”. It rejected the argument that the order improperly dictates the “quantum of evidence” agents need. It also noted that the government itself had earlier proposed similar language: DHS “would, for a limited period of time, be prevented from conducting field operations directed at individuals whom the agency knows or reasonably should know to be U.S. citizens.”

The en banc dissent

A judge asked for a vote on rehearing the order en banc. A majority of active, non-recused judges did not vote for it. Judge Tung, joined by Judges Callahan, Nelson, Collins, Bress, Bumatay and VanDyke, dissented:

“By enjoining the government from even investigating illegal voting, the district court departed from its limited role … it confused investigation for intimidation.” — Judge Tung, dissenting from denial of rehearing en banc

The dissent says Article II gives the President “exclusive authority and absolute discretion” over which crimes to investigate. It argues that Congress designed Section 11(b) to end violent intimidation of voters, and that “investigations of suspected voter fraud have nothing in common” with it. Federal law bars noncitizens from voting in federal elections (18 U.S.C. § 611).

Citizen impact: Until polls close on 3 November, U.S. citizens in the nine states should not receive DHS election-related field visits or interviews based on these lists. Investigations of people DHS reasonably believes are noncitizens can continue, and so can DOJ prosecutions. The government can still ask the Supreme Court to intervene, and the appeal itself continues.