Alarming Supreme Court Decision Green-lights Virginia Voter Purge

The Supreme Court has agreed to temporarily pause a lower court’s order that reinstated 1,600 voters to rolls in Virginia even though an appeals court found the purge of voters occurred in violation of a “quiet” period barring systematic changes to rolls so close to Election Day.
The order issued Wednesday noted that Justices Sonia Sotomayor, Kentanji Brown Jackson and Elena Kagan would have denied the request. There is no further explanation behind the order.
Virginia Gov. Glenn Youngkin (R), an ally of GOP presidential nominee Donald Trump, had issued an executive order in August to use data from the Department of Motor Vehicles to remove people from the state’s voter rolls. Certain individuals were supposed be notified that their registrations would be canceled if they could not confirm their citizenship within 14 days.
Youngkin’s order triggered a wave of lawsuits, including from voting rights groups and the Department of Justice. They argued that the executive order ended up unfairly removing eligible voters due to bureaucratic errors that improperly labeled some people as noncitizens.
The plaintiffs — which included the Virginia Coalition for Immigrant Rights, the League of Women Voters of Virginia, and the League of Women Voters of Virginia Education Fund, along with African Communities Together — also alleged that the purge was discriminatory, but no court has reached a decision on that claim.
U.S. District Judge Patricia Giles ordered Youngkin to reinstate 1,600 voters just days ago, after finding that many Virginians said they weren’t aware that they’d been flagged as ineligible to vote.
The “systematic” changes to rolls, Giles found, violated the National Voter Registration Act’s 90-day “quiet period.” The decades-old law bars major changes to voter rolls out of consideration for real-life time constraints, as 90 days would leave little time for voters or the government to remedy problems that may arise shortly before an election.
Virginia officials appealed Giles’ order to a 4th Circuit court and asked for it to be put on hold. The appellate court was unconvinced and brushed off Virginia’s claims that Giles’ decision would essentially allow noncitizens to appear on the rolls.
Before the Supreme Court weighed in, a group of 17 Republican former lawmakers filed a letter to the high court declaring that they were opposed to Youngkin’s request for an emergency stay. Many of the lawmakers noted that they had been involved with enacting the National Voter Registration Act in 1993 and that it was specifically meant to stop what Youngkin’s executive order set into motion.
“The daily systematic removal program recently undertaken by Applicants is precisely what the NVRA’s Quiet Period Provision forbids,” the former legislators wrote in reference to that law.
“It is not a close case; it is instead a paradigmatic violation of Congress’s design,” the letter read. “The fact that this last-minute systematic program has in fact disenfranchised eligible Virginia voters only confirms the wisdom of the NVRA’s plan and the illegality of this scheme. To hold otherwise would thwart the bipartisan congressional consensus underlying the NVRA.”
The group of Republicans included an array of former House representatives. Among them were former Reps. Adam Kinzinger of Illinois, a onetime member of the House committee investigating the Jan. 6, 2021, attack on the U.S. Capitol; Tom Coleman of Missouri; and Barbara Comstock of California, as well as legislators from states like Texas and Virginia.
“The Supreme Court allowing Virginia to engage in a last-minute purge that includes many known eligible citizens in the final days before an election is outrageous.”
Meanwhile, a group known as the FormerFedsGroup Freedom Foundation filed a letter in support of the purge, arguing that “requiring Virginia to include noncitizens in its voter rolls … dilutes lawful votes.”
The group said it “represents victims who experienced direct harm through the revocation of informed consent in healthcare contexts,” adding, “These experiences, where personal agency and consent were stripped away, reveal to Petitioners the vital importance of maintaining procedural safeguards — both in healthcare and within democratic processes — to protect individual rights and public trust.”
“The Supreme Court allowing Virginia to engage in a last-minute purge that includes many known eligible citizens in the final days before an election is outrageous,” Danielle Lang, senior voting rights director at the Campaign Legal Center, a network whose attorneys helped pursue the voters’ case, told HuffPost on Wednesday. “But the voters will decide this election, not the courts. Eligible Virginia voters should know that regardless of this purge they can register to vote on Election Day and cast their ballots,” she said.
Virginia has same-day registration for voters.
Virginia officials must now file a formal response to the voters’ complaint, either a motion to dismiss it altogether or otherwise. That will be litigated and Lang said she is hopeful there will be discovery, “in which case we can uncover more information about this purge,” she said Wednesday.
“The Supreme Court didn’t provide any reasoning so there’s no way for the lower courts to know, for example, if this has to do with the court’s views on Purcell or the closeness to the elections or the merits of Virginia arguments,” Lang said.
Purcell is the legal principle that essentially states that courts should not alter election rules during a truncated period before an election.
Virginia election officials contend this notion of a “quiet period” under federal law doesn’t apply to Youngkin’s executive order because the people removed from the rolls were never eligible to begin with.
But Lang said this is wrong and the evidence the voters’ attorneys uncovered showed the purge impacted eligible citizens.
At the DMV, multiple eligible voters had ticked the wrong box for citizenship status on forms.
“The form design made the citizenship box easy to mess up or miss,” she said.
Some of these voters that mistakenly ticked the box, in the same transaction at the DMV, had already shown officials their U.S. passports, something obtainable only if you are a U.S. citizen by birth or naturalization or a qualified U.S. noncitizen national.
“This order with no explanation less than a week before the elections, which allows Virginia to purge apparently eligible voters, sends an ominous signal to the American public,” Carl Tobias, the Williams Chair in Law at the University of Richmond School of Law, told HuffPost on Wednesday.
Tobias said that while voters could continue to pursue the case in the lower courts, “there is too little time” left, he said.
“Voters can also go to election officials and try to prove they were improperly purged before Election Day or try to vote on that day and show their proof, but it is very late and that is asking much of voters,” he said.
Youngkin reacted to the decision on Wednesday, calling it “a victory for commonsense and election fairness.”
Monica Sarmiento, the executive director for the plaintiff known as the Virginia Coalition for Immigrant Rights, said Youngkin and Virginia Attorney General Jason Miyares’ intent was clear.
“Voting is a sacred privilege only afforded to U.S. citizens. Governor Youngkin and Attorney General Miyares’s efforts to target naturalized citizen voters yielded the disenfranchisement of both natural born citizens and naturalized citizens. We are deeply disappointed that the vicious voting rights attacks from the Governor and Attorney General have been permitted to prevail. It is a dangerous occurrence when lawful U.S. citizens are carelessly removed from the voter rolls. Although we did not win this battle, VACIR will continue to fight for the right of eligible U.S. citizens to vote,” Sarmiento said.
Meanwhile, efforts to challenge voter registration in two other battleground states saw setbacks Tuesday, with judges in Pennsylvania and North Carolina dealing blows to Republicans’ legal challenges.
In North Carolina, a 4th Circuit court ruled that the Republican National Committee and North Carolina GOP must keep their challenge to the registrations of 225,000 voters in federal court, marking a win for Democrats.
North Carolina Republicans have argued that the voters were registered unlawfully because they completed forms that did not require identifying information, like the last four digits of a Social Security number or a driver’s license number. The GOP is asking for such people to be removed from voter rolls or to only be allowed to cast provisional ballots.
The Democratic National Committee successfully pushed to have the case moved from state to federal court. A federal judge then sent it back down to the state, saying he did not have jurisdiction to make determinations on matters involving North Carolina’s state Constitution.
But once on appeal at the 4th Circuit, judges unanimously concluded that sending the case back to the state was “improper.” With just a week to go until Election Day, the decision means that North Carolina Republicans are likely out of luck for this election season.
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And in Pennsylvania, a judge has thrown out a lawsuit that congressional Republicans filed to challenge voter ID requirements for military and overseas voters.
Lawmakers — including Trump ally Rep. Scott Perry, as well as Reps. Mike Kelly, Guy Reschenthaler, Glenn “GT” Thompson and Lloyd Smucker — claimed that Al Schmidt, the Republican secretary of the commonwealth, exceeded his power by saying that overseas voters were exempt from ID verification requirements. The lawmakers said the exemption threw the door wide open to voter fraud.
But in his ruling Tuesday, U.S. District Judge Christopher Conner dismissed the challenge.
“Plaintiffs delayed too long to file their action, they lack standing, they have failed to join indispensable parties, and they have failed to articulate a viable cause of action,” Conner wrote, adding that an injunction “at this late hour would upend the Commonwealth’s carefully laid election administration.”