A three-judge US Circuit Court panel expressed significant skepticism today over the Justice Department’s desire to inject itself into California’s midterm vote-counting process by forcing election officials to set aside the votes of suspected noncitizens who have been issued mail ballots.

During an emergency hearing, 9th Circuit US Court of Appeals Judge Mark Bennett told a Justice Department attorney that California appears to have legal authority to handle its elections on its own, and the fact that Congress passed a criminal law prohibiting noncitizens from voting in federal and state elections doesn’t mean the Justice Department has authority to regulate California’s voting process.

Bennett, a Trump appointee, and Judge Gabriel Sanchez, a Biden appointee, also both questioned the Justice Department’s decision to appeal to the 9th Circuit before the US District Court where the case was originally filed had held a hearing. They pressed DOJ attorney Matthew Donnelly about the reliability of the Trump administration’s claims that there are 20,000 noncitizens on California’s voter rolls, information the DOJ has said came from a purchased list of voters and analyzed by third parties.

The Trump administration is attempting to convince the court that it should be able to immediately change California’s ballot processing because of a fear that noncitizens could have sent in votes. Los Angeles County has already processed more than 300,000 midterm ballots.

But at least two of the three judges on the panel disputed the argument that federal law trumps the Constitution giving the power of running elections primarily to the states.

“It seems to me that under the Elections Clause, they have the right to determine the manner of the elections, including sorting out noncitizens,” Bennett said during the hearing, which was held over videoconference and broadcast on YouTube.

At the end of the remote hearing, Bennett said the panel would issue a decision on the appeal “as quickly as possible.”

Correction: This post has been updated to reflect that Los Angeles County has already processed more than 300,000 midterm ballots.