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The United States Department of Justice argued that the U.S. Supreme Court should deny a request by Virginia officials to stay the decision of a lower court that required the commonwealth to reverse course and reinstate roughly 1,600 voters that were removed from the rolls as the result of an Aug. 7 executive order from Gov. Glenn Youngkin.
The response from the Department of Justice to Virginia’s request for the U.S. Supreme Court decision to delay the order of a lower court is the latest in a legal drama that has played out within the last few weeks of a politically fraught election cycle.
The Department of Justice said, in its response filed with the U.S. Supreme Court on Tuesday, that Virginia officials are unlikely to succeed in their effort to receive a stay of the lower court’s decision because the commonwealth violated the “Quiet Period Provision” in the National Voter Registration Act. That federal “quiet period” law prevents people from being systematically removed from voter rolls within the 90 days leading up to the Nov. 5 election.
U.S. Solicitor General Elizabeth Prelogar, who wrote the response for the Justice Department, argued that the commonwealth’s action was a “clear violation of a federal statute enacted to prevent the very type of eleventh-hour disenfranchisement and confusion that applicants have caused.”
The Virginia Coalition for Immigrant Rights, which brought a lawsuit against the commonwealth in conjunction with the Justice Department argued that Virginia’s eligible voters face irreparable harm if a stay were to be granted and those 1,600 voters who were removed from the rolls remain ineligible to vote in the 2024 election.
Virginia officials take the voting case to the U.S. Supreme Court
The Justice Department’s response came after Virginia officials filed an emergency appeal to the U.S. Supreme Court on Sunday night that asked the high court to allow the commonwealth to continue a program aimed at removing noncitizens from the voter rolls.
The emergency appeal submitted by the commonwealth was docketed with the U.S. Supreme Court on Sunday after an appeals court panel upheld a federal judge’s injunction that halted the program and ordered the Virginia Department of Elections to reinstate about 1,600 voters whose registrations were canceled.
Those registrations were canceled after an Aug. 7 executive order, handed down by Republican Gov. Glenn Youngkin, 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 argued that Virginia’s Department of Elections sent 1,274 names of voters to local registrars on Aug. 28 to be removed from their rolls, weeks into the federally designated “quiet period.”
State officials are asking for a stay of injunction to be granted by Tuesday. The U.S. Supreme Court had yet to make a decision as of Tuesday night.
State officials, including Virginia Attorney General Jason Miyares, argued that Virginia has a legal right to remove noncitizens from the voter rolls in their appeal, and that halting the program threatens the commonwealth’s sovereignty.
“Americans citizens — and no one else — should determine American elections,” Miyares said in a post on X on Monday, in regard to the emergency stay filed by the commonwealth with the U.S. Supreme Court.
The state’s argument and the DOJ’s argument
State officials and the federal Department of Justice have disagreed on whether Youngkin’s executive order qualifies as a “systematic” process for removing voters from the rolls.
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.
Organizations that issued briefs in support of a stay of the lower court’s decision include the conservative American Center for Law and Justice, National Election Integrity Initiative, the Honest Elections Project, Restoring Integrity and Trust in Elections, Inc., the Republican National Committee and the Republican Party of Virginia. Attorneys general from dozens of other largely Republican-led states across the country also submitted a joint brief in support of a stay of the lower court’s decision.
More than a dozen former Republican members of Congress, including Denver Riggleman and Barbara Comstock, signed on to a brief issued against a stay of the lower court’s order.
The Department of Justice and voter-rights groups who sued earlier this month to stop the program argued that it violated the federal “quiet period” law.
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.
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.