A legal fight over roughly 20,000 California mail ballots is headed back to a federal appeals court for the second time in a week, with the state's Tuesday midterm election now just four days away.

The dispute began Oct. 15, when the Justice Department sued California and Los Angeles County after officials refused to comply with a 48-hour demand from acting Deputy Attorney General Trent McCotter to set aside ballots from more than 20,000 registered voters the department labeled "likely" noncitizens. Los Angeles County had responded that DOJ's list came with no explanation of how it was compiled or how citizenship could be verified — and a spot check of 200 names from the county's share of the list found 112 belonged to canceled or inactive registrations that were never mailed a ballot in the first place.

On Oct. 26, a divided panel of the 9th U.S. Circuit Court of Appeals rejected the department's first emergency appeal, ruling 2-1 that it lacked jurisdiction because DOJ never gave U.S. District Judge David O. Carter, who is overseeing the underlying case, a real chance to rule first. The majority — Judges Mark Bennett and Gabriel Sanchez — wrote that the government's "claimed emergency, at least in part, is a self-constructed one," noting DOJ sued less than three weeks before Election Day and sought a restraining order only after California had already begun processing ballots. Judge Patrick Bumatay dissented, writing that the federal government "has a sovereign interest in safeguarding federal elections." California Gov. Gavin Newsom called the ruling a "positive development," adding that Trump's "assault on democracy won't slow down."

The case then went back to Carter, who held a hearing Oct. 27 in which he pressed DOJ attorney Bill Essayli — the U.S. Attorney for the Central District of California — to cite precedent for blocking ballots outright. "Give me the case, give me the state," Carter said, and got no answer. He suggested a different remedy entirely: "Go out and indict," pointing to the federal misdemeanor statute covering noncitizen voting. Essayli countered that DOJ isn't claiming the list is "100%" accurate, but that prosecutions — the department charged 28 people the week before — are meant as deterrence, not a vehicle for resolving every disputed ballot.

"GO OUT AND INDICT."

On Oct. 28, Carter formally declined to order California to segregate the ballots, appointing a special master instead to independently evaluate DOJ's citizenship claims, with a target of finishing before California's Dec. 11 certification deadline. DOJ has now appealed that order — the second time the Ninth Circuit will take up the case in a week — while President Trump told reporters, "The judge should not have done that, but we'll appeal that, of course." DOJ has also sent similar set-aside demands to at least 18 other California county registrars.

Election law specialists note the fight is unlikely to be resolved before Tuesday's vote regardless of how the Ninth Circuit rules this time; California's own law already requires voters to attest to citizenship under penalty of perjury, and the state has an existing process for challenging individual ballots after the fact. Should DOJ lose again at the circuit level, its remaining options narrow to an en banc rehearing request or an emergency application to the Supreme Court.

What's next: the special master's review continues in parallel with the new appeal, with no ruling expected before polls close Tuesday.