‘Irreparably injure Virginia’s sovereignty’: Voter purge program lands before SCOTUS on eve of presidential election

Lawyers for the Commonwealth of Virginia have asked the chief justice of the United States to allow the state to enforce an executive order from Gov. Glenn Youngkin that some say risks forcing legitimately registered voters off the voting rolls just days before the 2024 presidential election.

Youngkin, a Republican, wants the state to purge voter rolls under Executive Order 35, issued in August, which orders state election officials to “[r]emove individuals who are unable to verify that they are [U.S.] citizens to the Department of Motor Vehicles” on a daily basis, according to a complaint filed on Oct. 7. Some 1,600 people have been removed; the state says it has reason to believe they are noncitizens.

Advocacy groups including the Virginia Coalition for Immigrant Rights, the League of Women Voters of Virginia, and the Virginia Education fund, sued Susan Beals, the Virginia Commissioner of Elections, along with other elections officials. The Justice Department is also among the plaintiffs in the lawsuit. The plaintiffs argued that the executive order results in illegal removal from voter rolls within the federally-mandated 90-day “quiet period” under the National Voter Registration Act (NRVA) — during which systematic removal of voters from official voter lists is not allowed — before elections.

The presidential election between Vice President Kamala Harris and former President Donald Trump will be held Tuesday, Nov. 5.

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A federal district court blocked enforcement of the order in a preliminary injunction ruling issued Friday. Virginia appealed, and in a ruling issued Sunday, the Fourth U.S. Circuit Court of Appeals found that the state officials were not likely to win their appeal from the district court’s injunction — perhaps due to what appears to be a strategic decision.

“Despite having made various justiciability and sovereign immunity arguments before the district court, appellants drop all such claims before us,” the appeals court ruling says. ” Instead, appellants argue the challenged conduct does not violate the National Voter Registration Act (NVRA). Like the district court, we are unpersuaded.”

On Monday morning, lawyers for Virginia had filed an emergency stay application directly to Chief Justice John Roberts of the U.S. Supreme Court, asking him to overrule the two lower courts and allow the state to implement enforcement of Youngkin’s August executive order.

The stay request emphasized that the 1,600 people removed from the rolls were “self-identified noncitizens,” and argued that the district court’s ruling was both “in violation of Virginia law and common sense.”

Lawyers argue that the NVRA “does not even apply to the removal of noncitizens and other voter registrations that are void,” and that even if it did, the Virginia program “complied with it anyway.”

“This election-eve injunction is thus based on legal error,” the filing also says. “The injunction, which prohibits the application of a law that has been on the books since the Justice Department precleared it in 2006, will also 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.”

Lawyers for the state asked that the stay be issued by Tuesday, one day ahead of the district court’s compliance deadline of Wednesday.

“The relief sought is not available from any other court or judge; both the district court and the Fourth Circuit have denied the requested stay,” the filing notes.

The appeals court found that the program removing names from voter lists wasn’t individualized enough to be exempted from the 90-day “quiet period,” swatted away Virginia’s argument that because the removals target noncitizens, the executive order isn’t subject to the quiet period.

“That argument violates basic principles of statutory construction by focusing on a differently worded statutory provision that is not at issue here and proposing a strained reading of the Quiet Period Provision to avoid rendering that other provision absurd or unconstitutional,” the ruling says. “That is not how courts interpret statutes.”

Virginia’s “proposed interpretation also creates new problems,” the appeals court judges also said, including “collapsing the distinction” between eligible and non-eligible voters, as well as requiring reading different words in different sections of the law “as having the same meaning.” The states’ interpretation also violates the “plain-meaning rule” by, as the judges write, “reading ‘registrant’ in subsection (a (3) as meaning something other than ‘one that registers or is registered’ to vote.”

The commonwealth’s other arguments “fare no better.” According to the circuit court (citations omitted):

According to the initial complaint, Youngkin’s “Purge Program” requires that the Virginia Department of Motor Vehicles (DMV) and the Department of Elections (ELECT) share a “daily file” that includes all “alleged ‘non-citizens transactions, including addresses and document numbers,’” the complaint says.

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“ELECT is then required to make daily updates to the voter rolls by comparing “the list of individuals who have been identified as noncitizens to the list of existing registered voters[.]” Once ELECT has identified these alleged noncitizens, ELECT sends the data to county registrars and directs them to ‘notify any matches of their pending cancellation unless they affirm their citizenship within 14 days’ of sending the notice, and ultimately cancel the voter’s registration if the registrar’s office does not receive this affirmation.”

This program, the complaint says, is a threat to the voting rights of people who may not have been born in the U.S., but who nonetheless have since sworn the oath and become citizens.

“The Purge Program by design and in implementation threatens the voting rights of eligible Virginia voters who are naturalized citizens,” the complaint says.

The complaint continues:

The Fourth Circuit’s order blocking enforcement was written by U.S. Circuit Judge Toby Jay Heytens, a Joe Biden appointee, on behalf of a three-judge panel that also included Chief U.S. Circuit Judge Albert Diaz and U.S. Circuit Judge Stephanie Thacker, both Barack Obama appointees.

Representatives from the governor’s office, the Justice Department, and the Virginia Coalition for Immigrant Rights did not immediately respond to Law&Crime’s request for comment.

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