A split appeals panel said it lacked jurisdiction and sent the Trump administration's emergency request back to a district judge. For now, California keeps counting ballots under its normal rules a few days before the midterms.
The Justice Department asked the 9th Circuit for a fast ruling after a judge refused to make California set aside up to 20,000 ballots. Millions of votes are already in, and Election Day is Tuesday.
Secretary of State Steve Hobbs told federal prosecutors their list is "not可靠的" and includes U.S. citizens. He says setting aside those ballots would be illegal, a week before the Nov. 3 election.
U.S. District Judge David O. Carter said Tuesday he may appoint an independent special master to vet the Justice Department's list of 20,000 alleged noncitizens on California's voter rolls, with a formal order expected Wednesday — six days before the midterm election ends.
In a rare Sunday hearing, a federal appeals court panel questioned the Justice Department's request to set aside mail ballots it says came from likely noncitizens. More than 3 million Californians have already voted, and a trial judge takes up the case Tuesday.
The Justice Department went to the 9th Circuit on Oct. 22, before a district judge ruled, asking it to stop California from counting mail ballots from more than 20,000 voters it says may not be citizens. California says the government has not shown who those voters are or that any of them voted.