Supreme Court allows Virginia to remove suspected noncitizens from voter registration rolls

CNN
—

A divided Supreme Court on Wednesday allowed Virginia to implement a program that state officials say aims to remove suspected noncitizens from its voter registration rolls, siding with Republicans in one of the first major decisions tied to next week’s election.

The decisionissued without comment from a majority of conservative justices, would allow the state to keep certain voters it suspects of being non-citizens off the rolls.

Liberal justices Sonia Sotomayor, Elena Kagan and Ketanji Brown Jackson dissented.

Republicans, including former President Donald Trump, framed the effort in Virginia as a sensible way to ensure non-citizens don’t vote. But the Biden administration, voting rights groups and lower courts said Virginia’s program also ensnared — and potentially disenfranchised — an unknown number of citizens.

Although Virginia is not a battleground state, both the program and the legal battle have taken on sharp political overtones as Trump and other Republicans have fueled false narratives of widespread noncitizen voting. At issue are about 1,600 voter registrations that Virginia said came from self-identified noncitizens but that a U.S. district court said had not been fully vetted for citizenship status.

Non-citizens may not vote in federal elections; none of the lower court decisions had changed that fact.

Trump and other Republicans have seized on allegations of illegal voting, and that was part of the argument they made to explain the former president’s loss in 2020. But documented cases of non-citizens voting are extremely rare. A recent audit in Georgia of the 8.2 million people on the list found only 20 registered noncitizens — only nine of whom had voted.

The Virginia case began with an order signed by Virginia Gov. Glenn Youngkin, a Republican, in August that required election officials to take more aggressive steps to match residents who self-identified as noncitizens with the Department of Motor Vehicles against voter lists and purges. those matches.

Youngkin called Wednesday’s Supreme Court ruling a “victory for common sense and electoral justice.”

The state’s voters, he said, “can cast their ballots on Election Day knowing that Virginia’s elections are fair, secure and free from politically motivated interference.”

The Biden administration and voting rights groups sued, and a U.S. district court concluded last week that at least some eligible U.S. citizens had their records expunged under the program. District Judge Patricia Tolliver Giles said none of the parties involved in the case knew for sure the citizenship status of the purged voters because the information was not verified.

Opponents of the program relied on a 1993 law, the National Voter Registration Act, which prevents states from making “systematic” changes to voter rolls 90 days after a federal election. The Biden administration said Youngkin’s order created exactly the kind of systematic program within the so-called “quiet period” mandated by federal law.

Virginia argued that the silent period bans applied only to eligible voters, not to non-citizens.

None of the lower court rulings blocked the state from conducting individual eligibility assessments or ultimately striking noncitizen voters off the rolls, nor gave noncitizens the right to vote in federal elections. The federal law only prevents “systematic” changes.

A three-judge panel of the 4th US Circuit Court of Appeals – all appointed by Democratic presidents – upheld most of Giles’ rulings, halted the program and required the state to return the 1,600 registrants to the rolls.

In their emergency appeal to the Supreme Court, Virginia election officials relied in part on a still-evolving legal theory that cautions federal courts against making last-minute changes to the status quo of voting rules before an election. The so-called “Purcell principle” aims to prevent federal courts from being drawn into last-minute election controversies.

Virginia argued that the federal district court violated that principle by pausing the program. Voting rights groups countered that there was a federal law at play in this case that specifically allowed plaintiffs to challenge last-minute voting changes.

Attorneys for Virginia also pointed to its possibility of same-day registration. Those whose registrations were improperly canceled could re-register at an in-person polling station by verifying their citizenship.

Virginia’s opponents countered that this option would not solve the problem of purged voters planning to vote absentee, unaware that their registrations had been canceled, and that it risked confusion at the polls — especially if poll workers were not adequately prepared to handle the scenario.

Because the Supreme Court provided no explanation for its decision, it is not clear which of Virginia’s arguments were persuasive.

This story has been updated with additional details.

CNN’s Tierney Sneed contributed to this report.