The Justice Department went over a federal judge’s head on Friday night and asked the Ninth Circuit to stop California counting ballots returned by roughly 20,000 people the government believes are not citizens. The appeals court ordered the state to answer by noon Saturday, Fox News reported.

The case started on October 15, when the United States Attorney’s Office for the Central District of California sued the state. It did not ask for anyone to be struck from the rolls. It asked that ballots tied to its list be set aside, unopened, until citizenship could be checked.

Judge David Carter did not rule by the deadline the department had asked for. So the department filed an emergency application with the Ninth Circuit instead, signed by Attorney General Todd Blanche and by First Assistant United States Attorney Bill Essayli.

“This is an emergency,” the filing said.

The hearing in front of Judge Carter is still on the calendar for Tuesday. Whether the appeals court rules before then is not known.

Essayli says investigators have evidence that all 20,000 people on the list were mailed ballots this month. He has called that number the floor rather than the ceiling.

The department’s argument is about what happens to everyone else’s vote. Counting ballots without first separating the ones under question, it wrote, causes “untraceable disenfranchisement and dilution of the votes of United States citizens.”

California’s answer is not that the 20,000 are citizens.

It is that county election offices have neither the legal authority nor the access to federal records to determine citizenship, and that the request arrives too late to be carried out. Once a mail ballot clears signature verification, the ballot is separated from the envelope carrying the voter’s name and goes into the pile with everything else.

After that there is nothing left connecting a ballot to the person who sent it. Los Angeles County alone has mailed about 5.9 million ballots and has already processed 331,000 that came back.

The county has also pushed back on the list itself. In a court declaration, an official said that in a sample of 200 records drawn from the department’s list, 112 matched registrations that were already cancelled or inactive.

Essayli called that figure meaningless, on the grounds that the county cannot verify citizenship either way.

Two related things are moving at the same time.

Federal prosecutors charged 28 people in California last week with registering to vote, and in some cases voting, as noncitizens. The department says all 28 appear on the 20,000-name list and all 28 are still registered.

And on October 21, Senate Minority Leader Chuck Schumer and House Minority Leader Hakeem Jeffries sued the administration in federal court in Washington, arguing that its push to remove suspected noncitizens from state rolls is unlawful. The department says its actions are lawful.

Behind all of it sits a Supreme Court order from September 25, which for now allows states to use the Department of Homeland Security’s SAVE system to check whether a registered voter is a citizen.

Essayli and Governor Gavin Newsom spent part of the week arguing on social media, Essayli blaming the state’s verification procedures and Newsom saying California is following the law.

Election day is November 3. In California, millions of ballots are already in the mail.