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

Virginia does not have to restore about 1,600 people who were recently removed from its voter rolls under a controversial program seeking to weed out potential non-citizens, the Supreme Court ruled Wednesday.

The Justice Department and civil rights groups alleged that U.S. citizens were being caught up in the purge. Last week, a federal district judge ordered the state to stop the program and restore voters whose registrations had been canceled since early August.

But the Supreme Court halted the district judge’s directive, lifting the requirement to put those voters back on the books in advance of Tuesday’s election.

All three of the high court’s liberal justices dissented from the action, announced in a terse one-page order. Neither the court’s majority nor any of the dissenters detailed their reasons.

The immediate impact of the ruling is limited to Virginia. While voter list maintenance is routine across the country, most states — including the major presidential battlegrounds — are not running programs like Virginia’s on the eve of the 2024 election.

Virginia stepped up its program in August after Republican Gov. Glenn Youngkin ordered daily sweeps to compare Department of Motor Vehicles data with the state’s voter rolls. Officials looked for individuals who were identified as non-citizens in the DMV database but were also registered to vote.

In a pair of lawsuits challenging the program, the Justice Department and civil rights groups argued that Virginia’s purge violated the “quiet period” of the National Voter Registration Act, a three-decade-old federal law prohibiting states from “systematically” removing voters from the rolls during the 90 days before a federal election.

The lawsuits identified several Americans who were swept up in the purge and removed from the rolls. The Virginia Coalition for Immigrant Rights, the League of Women Voters and others said the Americans were caught up because of bureaucratic errors or their own mistakes — like inadvertently checking the wrong box on forms at the DMV — or had become citizens after their most recent interaction with the DMV.

Some people stripped from the rolls in Virginia have already reregistered and voted. Virginia also has same-day registration, which allows anyone to seek to vote through a provisional ballot, which will be counted once their eligibility is confirmed by local election officials.

However, civil rights groups said getting an absentee ballot in advance of Election Day could be difficult for voters kicked off the rolls. Having people show up at the polls and find out they’re not on the voter list also creates delays and confusion, the groups said. The letters sent to suspected non-citizens also mention criminal penalties for illegal voting, which could dissuade some citizens from exercising their right to vote, advocates claimed.

Former President Donald Trump and other Republicans have increasingly focused on the alleged threat of non-citizen voting in the run-up to the election, arguing that it is one of several threats to the security and integrity of U.S. elections. It is already illegal for anyone who is not a U.S. citizen to vote in federal elections. And while broad voting registration efforts do sometimes result in non-citizens being added to the rolls, actual voting by those people in the U.S. appears to be exceedingly rare. A report from the liberal Brennan Center from the 2016 election estimated 30 incidents of suspected non-citizen voting across 42 jurisdictions that saw a total 23.5 million votes cast.

Other states have identified a tiny number of non-citizens on their rolls. For instance, Georgia Secretary of State Brad Raffensperger, a Republican, last week announced that his state had conducted an “audit” of its rolls and found 20 non-citizens registered out of the 8.2 million on the rolls, none of whom had voted early in this year’s election.

In a statement, Youngkin welcomed the Supreme Court ruling and said it reinforced the security of the vote in Virginia.

“Clean voter rolls are one important part of a comprehensive approach we are taking to ensure the fairness of our elections,” Youngkin said. “Virginians can cast their ballots on Election Day knowing that Virginia’s elections are fair, secure, and free from politically-motivated interference.”

U.S. District Court Judge Patricia Giles, a nominee of President Joe Biden, issued the preliminary injunction Friday requiring Virginia to restore the removed voters and attempt to notify them about the reversal. On Sunday, a unanimous three-judge panel of the 4th Circuit Court of Appeals turned down a request from state officials to lift the injunction, prompting Youngkin to seek emergency intervention from the Supreme Court.

The ruling Wednesday was the first dispute directly related to this year’s election that appeared to divide the high court along ideological lines. The court ruled unanimously in March that states lacked the power to kick Trump off the presidential ballot as an insurrectionist, although justices differed somewhat on the details of that decision. The court’s liberals bitterly dissented from a July ruling that Trump enjoys presidential immunity for at least some of his actions four years ago that led to his indictment on charges of trying to overthrow the election.

However, there’s been little sign of dissent at the court on electoral issues in recent weeks, with the justices knocking down a series of requests from former presidential candidate Robert F. Kennedy Jr. to get his name either on or off the ballot in three different states.

Another potentially contentious election issue is pending at the Supreme Court: an emergency request from Republicans to block a Pennsylvania Supreme Court ruling that voters who make errors with their mail-in ballots must be allowed to vote provisional ballots on Election Day.