The Supreme Court on Wednesday granted Virginia’s emergency request to revive Republican Gov. Glenn Youngkin’s systematic purge of voter rolls ahead of Election Day.
The court’s three Democratic appointees dissented from the order. The Republican-appointed majority didn’t explain its reasoning, nor did the dissenters, which isn’t unusual in emergency litigation.
The Republican win from the Roberts Court follows Tuesday’s nearly unanimous rejection of former independent candidate Robert F. Kennedy Jr.’s attempt to get off ballots in battleground states Wisconsin and Michigan, which he wanted to do to help Republican Donald Trump’s campaign.
The justices are also expected to rule soon on an emergency bid from Republicans to block provisional ballots in Pennsylvania. The impending decision in the case from that swing state could provide a fuller picture of how the court is handling litigation in this election, which could be a close one between Trump and Democratic nominee Kamala Harris.
A federal judge on Friday had blocked Virginia’s program, citing the National Voter Registration Act. That federal law bars states from systematically removing ineligible voters within 90 days of a federal election. Virginia argued to the justices that the law doesn’t apply to removing noncitizens and that its removal process is individualized, not systematic.
Opposing the emergency bid alongside voting rights groups, the federal government said that Virginia has “no legitimate interest in continuing practices that plainly violated federal law.” The government said that state officials “pervasively invoke alleged harms that they have failed to prove. … Notably, applicants have provided no reason to believe that any noncitizens have voted in past Virginia elections, or that any are likely to do so in the upcoming election.”
In ruling against the state, U.S. District Judge Patricia Giles said that its program has curtailed the rights of eligible voters to cast their ballots, citing evidence that eligible citizens have had their registrations canceled. The Joe Biden appointee said that “restoring the right to vote of all eligible voters affected by this program strongly outweighs the burden to Defendants [Virginia] of restoring those names to the rolls.”
She added that officials could still remove ineligible registrants through individualized inquiry.
On Sunday, a 4th U.S. Circuit Court of Appeals panel said it was likewise “unpersuaded” by the state’s argument that it wasn’t violating the federal voter registration law. “Here, the challenged program does not require communication with or particularized investigation into any specific individual,” a unanimous appeals court panel said in the order that prompted Supreme Court review. “Rather, the inclusion of a person’s name on a list electronically compared to other agency databases is enough for removal from the voter rolls.”
The panel of Democratic appointees said the state’s argument that the law doesn’t cover noncitizens “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. That is not how courts interpret statutes.” The Supreme Court’s order on Wednesday pauses the trial judge’s ruling pending further litigation in the appeals court and potentially the high court. In the 2020 election that Trump lost to Biden, the Democrat won Virginia, where early voting is already underway this year, by about half a million votes. While this appeal only concerned Virginia, the state was backed at the high court by Republican interests and states, including a brief led by Kansas Attorney General Kris Kobach, who was previously held in contempt and sanctioned for defying court orders during voting litigation. Subscribe to the Deadline: Legal Newsletter for expert analysis on the top legal stories of the week, including updates from the Supreme Court and developments in Donald Trump’s legal cases.
Jordan Rubin is the Deadline: Legal Blog writer. He was a prosecutor for the New York County District Attorney’s Office in Manhattan and is the author of “Bizarro," a book about the secret war on synthetic drugs. Before he joined MS NOW, he was a legal reporter for Bloomberg Law.
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