Virginia officials on Sunday night filed an emergency appeal to the U.S. Supreme Court, asking it to allow the commonwealth to continue a program aimed at removing noncitizens from the voter rolls but which critics said violated federal law and impacted eligible citizen voters.
The move came hours after an appeals court panel upheld a federal judge’s Friday injunction that halted the program and ordered the Virginia Department of Elections to reinstate about 1,600 voters whose registrations were canceled after Aug. 7, when Republican Gov. Glenn Youngkin ordered officials to more frequently use state data to purge identified noncitizens from local voter lists.
State officials are asking for a stay of Friday’s injunction to be granted by Tuesday. Chief Justice John Roberts has asked the U.S. Department of Justice and voting-rights groups who challenged the program to respond by 3 p.m. Tuesday.
In their appeal to the Supreme Court, state officials, including Virginia Attorney General Jason Miyares, argue that Virginia has a legal right to remove noncitizens from the voter rolls and that halting the program threatens the commonwealth’s sovereignty.
“Americans citizens — and no one else — should determine American elections,” Miyares said Monday on X, the social media platform formerly known as Twitter.
Among other arguments, the Virginia officials say 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. The federal court’s order will force noncitizens back onto the lists of eligible voters, the officials said.
The appeal states that the injunction will “irreparably injure Virginia’s sovereignty, confuse her voters, overload her election machinery and administrators, and likely lead noncitizens to think they are permitted to vote, a criminal offense that will cancel the franchise of eligible voters.”
The Justice Department and groups who sued earlier this month to stop the program argued that it violated a federal “quiet period” law that prevents people from being systematically removed from voter rolls within the 90 days leading up to the Nov. 5 election.
They also said eligible citizen voters, including newly naturalized citizens, were caught up in the sweep. The program removes people from the voter rolls if state Department of Motor Vehicles records indicate that they are not citizens; among those impacted could be people who obtained driver’s licenses before they obtained citizenship, the groups argued.
“The right to vote is fundamental and foundational to our democracy, and states have a responsibility to ensure that eligible voters are not erroneously removed from the voter rolls,” Ryan Snow, an attorney with the Lawyers’ Committee for Civil Rights Under Law who is representing the plaintiffs, said in a statement after the lawsuit was filed. “Instead, Virginia is fast-tracking removals based on faulty and outdated DMV data without doing anything to verify its accuracy.”
While the program targets noncitizens, 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.
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. The state Department of Elections still can remove voters at the registrant’s own request because of criminal conviction or mental incapacity or because of the death of a registrant.
Virginia officials immediately appealed, but on Sunday, a three-judge panel of the Richmond-based 4th Circuit U.S. Court of Appeals upheld the lower court’s ruling.
Republican former President Donald Trump, who plans a campaign stop on Nov. 2 in Salem, said Friday on X that the ruling is a “totally unacceptable travesty” and that “Governor Youngkin is absolutely right to appeal this ILLEGAL ORDER, and the U.S. Supreme Court will hopefully fix it!”
Plaintiffs in the suit are the United States, the Virginia Coalition for Immigrant Rights, the League of Women Voters of Virginia, the League of Women Voters of Virginia Education Fund, and African Communities Together.
The defendants who are now appealing to the U.S. Supreme Court include Miyares, Virginia Commissioner of Elections Susan Beals, the state Board of Elections and the commonwealth itself.
