Supreme Court Lets Virginia Proceed with Flawed Purge of Voter Rolls
The order may be a harbinger of how the Court will rule in cases anticipated to follow Election Day.
DEPENDING ON HOW THINGS GO NEXT TUESDAY, we may soon see a wave of election-related lawsuits that will dwarf even the flood that followed the 2020 election. And some litigation is already underway—with two cases so far having reached the Supreme Court. A case from Pennsylvania is still pending, but on Wednesday, the Court handed down an order in a case from Virginia. The majority sided with the state’s Republican governor, permitting a purge from the registration rolls of possibly ineligible voters even though that purge definitely also removed some eligible citizens.
Here’s the background: On August 7, 2024, exactly ninety days before the presidential election, Virginia Gov. Glenn Youngkin issued an executive order directing that the state’s Department of Motor Vehicles transmit daily to the state’s Department of Elections data on individuals who at some point indicated that they are noncitizens. Youngkin directed the Department of Elections to compare that data with the state’s voter rolls and remove apparent matches—regardless of whether the purged voters were in fact eligible voters because they had since become naturalized citizens or were U.S.-born citizens who checked the wrong box during electronic transactions at the DMV. The targeted individuals would be given fourteen days to “affirm their citizenship” before their voter registration would be purged.
Pro-voter groups sued the state, citing a 1993 federal law called the National Voter Registration Act (NVRA), which bans mass purges of voter rolls within ninety days of an election: Any state “program” whose purpose “is to systematically remove the names of ineligible voters from the official lists of eligible voters” based on the failure to meet eligibility requirements must halt “not later than 90 days prior to” any election for federal office. This block of time is known as the “quiet period.”
Voting groups sued Virginia, arguing that Youngkin’s purge violated the NVRA. Virginia didn’t dispute that Youngkin’s order was a “program” under the NVRA, that its purpose was systematic removal of voters from the rolls, or that it fell within the ninety-day quiet period.
The U.S. District Court agreed with the voting groups, granting a preliminary injunction halting Youngkin’s purge program and ordering the state to put the approximately 1,600 purged people back on the rolls. The U.S. Court of Appeals for the Fourth Circuit also sided with Virginia voters and rejected Virginia’s somewhat cynical argument that the NVRA “doesn’t cover noncitizens” in the first place. According to the state, noncitizens are neither “eligible” nor “ineligible” voters in the first place—so who cares if they are purged in contravention of the NVRA.
The lower federal courts didn’t buy it. The Fourth Circuit specifically rejected Virginia’s “strained reading” of the quiet period language because it would mean “collapsing the distinction between ‘voters’ and ‘eligible voters’” and render the wording of the statute “superfluous” and “absurd.”
But there’s an even bigger problem with Virginia’s argument. According to the appeals court, “What the district court actually found was that ‘neither the Court nor the parties . . . know’ that the people ‘removed from’ the voter rolls under the challenged program ‘were, in fact, noncitizens,’ and that at least some ‘eligible citizens . . . have had their registrations canceled and were unaware that this was even so.”
“I’m not dealing with beliefs,” U.S. District Judge Patricia Giles told a lawyer for Virginia when he categorically referred to the people cut from the rolls as noncitizens. “I’m dealing with evidence.”
So two lower federal courts found that Youngkin’s program illegally captured and tossed out eligible voters who had properly and legally registered with the DMV—just weeks before the presidential election. Nobody even pretended that those voters should have been stricken from the rolls. That’s the price that must be paid for keeping non-citizens from voting, lawyer Charles Cooper argued for Virginia. “If a noncitizen votes, it cancels out a legal vote. And that is a harm.”
Let’s put this problem in perspective: Noncitizen voting is extremely rare. As David Becker, founder of the Center for Election Innovation & Research, told CNN: “States have routinely done checks for noncitizens in just the last couple of years. They found literally zero noncitizens to cast a vote. Even Texas had found only 0.03% possible noncitizens. And based on previous activity in the last few years, it’s likely that every single one of those had been recently naturalized.”
Yet in a 6–3 “shadow docket” ruling on Wednesday—made with no oral argument and released with no explanation—the Supreme Court’s right-wing majority reversed those lower federal courts just days before the presidential election, meaning that those 1,600 registrations likely will now be purged.
Crucially, the Court took this action without concrete evidence that noncitizens had illegally registered in Virginia. The factual record from the lower courts established only that some lawfully registered citizens were among those being thrown off the rolls as a result of the purge order.
If Virginia, pursuant to the Supreme Court’s order, once again removes from its rolls even those individuals among the 1,600 who assert that they were wrongly purged, all is not lost for them: Virginia permits same-day registration, so those individuals can still re-register on Election Day and cast a vote.
Still, it’s disturbing that, despite Congress having weighed in three decades ago on last-minute voter purges, declaring them illegal, the right-wing Supreme Court majority doesn’t care.
Nor do the “conservative” justices seem to care that the Court’s own precedent protects the rights of the very voters that they just snubbed. In a 1974 case called Richardson v. Ramirez, William Rehnquist—a conservative who at the time was an associate justice—wrote: “Because the right to vote is of the essence of a democratic society, and any restrictions on that right strike at the heart of representative government, voting is a fundamental right.”1
Not only did the Court ignore that bedrock principle, it didn’t even bother to tell the American public why. Regardless of who wins the White House, the justices on the far right present an enduring threat to democracy—one that voters cannot directly fix at the ballot box.
Emphasis added, and internal citations and quotation marks omitted.
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