Supreme Court allows Virginia to remove suspected non-citizens from voter rolls

The Supreme Court on Wednesday temporarily blocked an order by a federal judge that would have required Virginia to return more than 1,600 people to the voter rolls. U.S. District Judge Patricia Tolliver Giles found that since early August the state had canceled the registration of more than 1,600 voters at least some of whom were U.S. citizens eligible to vote under a program intended to remove suspected noncitizens from the voting rolls.  

In a brief unsigned order on Wednesday morning, the justices granted Virginias request to put Giles order on hold while a challenge to it continues. Justices Sonia Sotomayor, Elena Kagan, and Ketanji Brown Jackson indicated that they would have denied the states request.

The Biden administration and several civic and immigrant rights groups went to federal court to challenge an Aug. 7 executive order by Virginia Gov. Glenn Youngkin. Youngkin directed the states department of motor vehicles to provide state election officials with data on a daily basis to allow them to identify and cancel the voter registration of suspected noncitizens unless they could verify their citizenship within 14 days.

The Biden administration and the private challengers contend that Youngkins order violates a provision of the National Voter Registration Act known as the quiet period provision, which generally prohibits states from systematically removing ineligible voters within 90 days of a federal election.

Giles barred the state from continuing the program, although she left open the prospect that the state could still remove voters on an individual basis for example, if they had died or are not eligible to vote because of a criminal conviction.

After the U.S. Court of Appeals for the 4th Circuit left Giles order in place, the state came to the Supreme Court. Virginia maintained that the NVRAs quiet period provision does not apply to Youngkins order because the law does not bar the removal of noncitizens who were not eligible to vote in the first place. But in any event, the state added, its voter-purge program is not the kind of systematic program prohibited by the quiet period provision, but instead an individualized process that gives the would-be voter two chances to correct any mistakes about citizenship status.

The state also argued that Giles order violates the Purcell principle the idea that courts should not change election rules during the period just before the election.

But U.S. Solicitor General Elizabeth Prelogar countered that because the quiet period provision only applies in the run-up to an election, the law expressly contemplates that challenges will be filed in the month before an election, just as it and the civic and immigrant rights groups did here. Indeed, she wrote, it appears that no court has invoked Purcell to deny relief when faced with a violation of the Quiet Period Provision.

Virginias voter-purge program is also precisely the kind of systematic program that the quiet period provision bars, Prelogar insisted. Virginias DMV simply created lists of suspected noncitizens, which were then compared electronically to information in other agency databases, without any real opportunity for case-by-case considerations. In fact, Prelogar noted, one local registrar indicated that he was compelled to cancel registrations even when his files contained ample evidence of their citizenship.

Prelogar pushed back against the states suggestion that, if Giles order were allowed to remain in place, it would be permanently harmed by its inability to enforce its own laws. [T]hat principle, she contended, carries little weight here, where a States chosen manner of implementing its laws is a clear violation of a federal statute enacted to prevent the very type of eleventh-hour disenfranchisement and confusion that applicants have caused here.

But in a one-paragraph order on Wednesday morning, the court granted the states request to put Giles order on hold while the challenge to the voter-purge program continues in the lower court. As is often the case with emergency appeals, the justices did not provide any reasoning for their decision.

Sotomayor, Kagan, and Jackson indicated that they would have denied the states request, but they also did not explain why they would have done so.

This article was originally published at Howe on the Court.