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In a 6-3 ruling, the U.S. Supreme Court sided Wednesday with Virginia officials who requested a stay of order from a lower court that will allow the commonwealth to continue to remove “noncitizen” voters from the rolls.
None of the justices provided an opinion or dissent regarding the court’s decision.
“This is a victory for commonsense and election fairness,” Gov. Glenn Youngkin said in a statement. “Clean voter rolls are one important part of a comprehensive approach we are taking to ensure the fairness of our elections.”
Voter rights advocates called the court’s decision an abuse of power and said there is no conclusive evidence to support the commonwealth’s assertion that the 1,600 voters removed from the rolls are noncitizens, during a press conference following the decision on Wednesday.
The request for a stay — or delay — sent to the U.S. Supreme Court was filed by Virginia officials on Sunday night. It asked the high court to allow the commonwealth to continue a program aimed at removing noncitizens from the voter rolls, despite a lower court decision that sided with the Department of Justice and voter-rights groups that sued to halt the program, until the commonwealth can appeal that lower court decision.
Arguments, questions surrounding the stay and a 1993 federal law
The Department of Justice and voter-rights groups had argued that the commonwealth violated a federal “quiet period” law that prohibits the systematic removal of voters from the rolls within 90 days of a federal election.
“I think the court’s decision is contrary to both the clear text of the National Voter Registration Act and Congress’ intent in passing it,” said Christopher Seaman, a professor of election law at Washington and Lee University.
He pointed out that Congress was concerned that last-minute “voter purges” could end up sweeping both ineligible as well as eligible voters up in the fray.
“We have evidence from both the private plaintiff’s filings and news reports that that’s precisely what happened here,” he said.
The National Voter Registration Act, signed into law in 1993, says a systematic removal of voters from the rolls is prohibited from taking place within 90 days of a federal election. The federal Department of Justice and state officials have disagreed on whether Youngkin’s executive order qualifies as a “systematic” process for removing voters from the rolls.
As a functional matter, Seaman said, the stay granted by the U.S. Supreme Court will likely be the final word on the issue before the Nov. 5 election.
Daniel Ortiz, professor of law at the University of Virginia, pointed out that the stay, granted by the U.S. Supreme Court, applied only to the emergency order issued by the lower court that required Youngkin’s executive order to halt.
“There are still proceedings before the district court to ultimately determine whether [Youngkin’s executive order] is illegal or not. Those proceedings will continue,” Ortiz said.
Voter-rights advocates said during Wednesday’s press conference that the legal battle is not over and encouraged eligible voters who may have been removed from the rolls to check their registration status and re-register if necessary.
The commonwealth allows for same day, in-person registration on Election Day and at early voting precincts. Same day, in-person registration can be done after the Oct. 15 registration deadline, according to the Department of Elections.
The delayed lower court order
On Friday, U.S. District Judge Patricia Giles issued an injunction saying that the systematic removal of voters must stop and that the 1,600 affected people must be restored to the rolls and notified accordingly. Under Giles’ order, the state Department of Elections could continue to remove voters at the registrant’s own request, because of criminal conviction or mental incapacity or because of the death of a registrant.
The registration of about 1,600 voters was canceled after Youngkin issued an executive order on Aug. 7 that required officials to use state data to purge identified noncitizens from local voter lists on a daily basis rather than monthly.
The Department of Justice and voter-rights groups sued to halt Youngkin’s order. They argued that the commonwealth violated a federal “quiet period” law that prohibits the systematic removal of voters from the rolls within 90 days of a federal election.
State officials, including Virginia Attorney General Jason Miyares, argued that Virginia has a legal right to remove noncitizens from the voter rolls in their request for a stay and that halting the program threatens the commonwealth’s sovereignty.
Virginia officials said that not only did the 1,600 people identify themselves as noncitizens but that about 1,000 of them provided noncitizen residency documents to the state and were subsequently verified as noncitizens via a federal database, among other arguments. The federal court’s order will force noncitizens back onto the lists of eligible voters, the officials said.
Some citizens have seen their voting rights canceled since the Aug. 7 executive order. Checking a box on a DMV form denying citizenship counts as identifying as a noncitizen but so does failing to check a box affirming citizenship.