A 9th Circuit panel on Monday declined, 2-1, to rule on whether California officials can count roughly 20,000 ballots the Justice Department alleges likely belong to noncitizen voters, sending the dispute to a federal district judge for a Tuesday hearing at 1 pm.

The panel held it was premature for an appeals court to intervene, writing that the government 'failed to allow the district court adequate opportunity to consider' its initial request to sequester the ballots.

The ruling leaves the federal government a very short window to compel California to set aside votes before the Nov. 3 elections.

Judge Gabriel Sanchez, a Biden appointee, wrote that the emergency the government cited was at least partly 'the product of the United States's own decisions' to file so close to the elections, after counting had begun.

He said the government was delayed in recognizing that California law governs ballot processing, that the state has millions of registered voters on an aligned schedule, and in communicating its desired relief.

Judge Mark J. Bennett, a Trump nominee, added that setting aside ballots would 'usher in electoral chaos' and that the administration appears to lack constitutional power to force California to separate them.

Judge Patrick Bumatay, also appointed by Trump, forcefully dissented, arguing federal law precludes California 'from commingling ballots likely cast by aliens with legitimate ballots, because it encourages and induces illegal voting.'

He said stopping that practice for those identified as likely noncitizens is the bare minimum, and that while the government could prosecute fraudulent voters after the election, it 'has an interest in stopping the illegal voting in the first place.'

The dissent frames the stakes for the district judge who hears arguments Tuesday.

Both state and federal law bar noncitizens from voting, but California officials say it is not even clear the 20,000 named people are not U.S. citizens.

Los Angeles election officials said in court papers that the majority of a random sample the DOJ identified as immigrants appeared to have been born in the United States.

County officials are pushing back directly. Santa Clara County Counsel Tony LoPresti told KTVU the federal government is 'insisting that our registrar of voters violate the law' with 'no basis' to segregate ballots, noting DOJ counsel in court could not say where the purchased list came from.

Solano County Registrar John Gardner said 55 percent of a checked sample were no longer eligible to receive ballots at all, and the review did not establish anyone was a noncitizen. Contra Costa officials say they will keep processing ballots unless a court orders otherwise.

District Judge David O. Carter hears the request Tuesday at 1 pm and, per IBTimes, has said he will rule promptly afterward — the last real checkpoint before Election Day.

California AG Rob Bonta called the ruling a 'welcome speed bump' to Trump's attacks and urged voters not to become disillusioned; Governor Newsom likewise encouraged early voting.

Sonoma State professor David McCuan told KTVU the DOJ's demand conflicts with the Purcell Principle against late election changes and warned the fight 'could end up in the Supreme Court by the end of the week.' The Justice Department made similar demands Monday in Washington state.