A federal appeals court on Friday rejected the Justice Department’s emergency bid to force California to set aside mail-in ballots associated with roughly 20,000 suspected noncitizens, opening a potential path to the Supreme Court days before the midterm elections.

The 9th U.S. Circuit Court of Appeals voted 2-1 to deny an injunction requiring officials to separate the flagged ballots and verify voters’ citizenship before counting them. The decision matches the same vote that was handed down in a Monday denial by the same panel.

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