VA Asks SCOTUS If It Can Take Noncitizens Off The Voter Rolls

The Commonwealth of Virginia asked the U.S. Supreme Court on Sunday to allow state election officials to remove roughly 1,600 “self-identified” noncitizens from the voter rolls before Election Day.

“Americans citizens — and no one else — should determine American elections,” Attorney General Jason Miyares wrote in a Monday statement announcing the development.

The emergency application for stay asks the nation’s highest court to effectively pause a Sunday decision by the 4th Circuit Court of Appeals. That ruling upheld a Friday decision by a Biden-appointed district court judge that prohibits the state from removing noncitizens and other ineligible voters from its voter registration lists ahead of the 2024 election.

The three-judge panel for the 4th Circuit was comprised of all Democrat appointees, according to local media and the Associated Press.

The entire legal saga began in August, when Republican Gov. Glenn Youngkin issued an executive order directing commonwealth agencies to undertake voter list maintenance and other election security procedures ahead of the November election. In the order, the governor revealed the state had removed 6,303 noncitizens from Virginia’s voter rolls from January 2022 to July 2024.

The Biden-Harris Department of Justice filed a lawsuit against the commonwealth earlier this month, alleging that the state’s removal of noncitizens and other ineligible individuals from Virginia’s voter rolls this close to the November election violated provisions of the 1993 National Voter Registration Act (NVRA). That law requires states to complete “not later than 90 days prior to the date of a primary or general election for Federal office, any program the purpose of which is to systematically remove the names of ineligible voters from the official lists of eligible voters.”

Miyares argues in the state’s emergency application for stay that the Biden-appointed district court judge based her injunction on a provision within the NVRA that “does not even apply to the removal of noncitizens and other voter registrations that are void ab initio,” and that “even if it did apply to the removal of noncitizens, Virginia’s program complied with it anyway.”

“This election-eve injunction is thus based on legal error,” the application reads. “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 offence that will cancel the franchise of eligible voters.”

The attorney general further claims the district court’s injunction violates the Purcell principle, which, as described by Ballotpedia, is a legal doctrine adopted by the Supreme Court “establishing that courts should not change election rules during the period just prior to an election because it could confuse voters and election officials.” Miyares contends the 4th Circuit panel “refused to apply Purcell and declined to stay the injunction, holding that ‘appellees do not challenge a state election law’ and that Purcell is inapplicable to the NVRA.”

“This ruling is incorrect and violates this Court’s precedent. The district court enjoined enforcement of” Virginia law, the filing reads. “And Purcell applies to eleventh-hour injunctions under the NVRA, particularly where, as here, they order mandatory retrospective relief of adding numerous individuals to a State’s voter rolls past the State’s deadline for doing so and imminently before an election.”

Virginia has asked the high court to issue a stay by Tuesday or that an “immediate administrative stay” be issued “to permit the orderly resolution of this motion.”

Chief Justice John Roberts is the “circuit justice” tasked with handling emergency stay applications from Virginia. According to SCOTUSblog, he can “grant or deny the application on [his] own, or [he] can refer it to the full court for all of the justices to vote on it.” The issuance of a stay would then require approval from at least five justices.

Virginia Emergency Application for Stay on Noncitizen-Voter Roll Dispute by The Federalist on Scribd

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Shawn Fleetwood is a staff writer for The Federalist and a graduate of the University of Mary Washington. He previously served as a state content writer for Convention of States Action and his work has been featured in numerous outlets, including RealClearPolitics, RealClearHealth, and Conservative Review. Follow him on Twitter @ShawnFleetwood