The U.S. Supreme Court granted an emergency appeal Wednesday morning that allows Virginia to keep 1,600 people off the state's voter rolls who had been removed in an enhanced process instituted by Republican Gov. Glenn Youngkin.
The state claims the individuals who were removed are noncitizens. Noncitizens voting is a rare occurrence nationwide. And in the commonwealth, records from the Supreme Court of Virginia don’t show any prosecutions for noncitizen voting since 2004.
The case made its way to the Supreme Court quickly: On Friday, U.S. District Court judge Patricia Tolliver Giles ordered Virginia to return voters to the rolls by Wednesday. And on Sunday, an appeals court denied the commonwealth’s appeal. By Monday, Virginia had asked U.S. Chief Justice John Roberts to intervene before the end of Tuesday or “issue an immediate administrative stay.”
The Supreme Court had not intervened by 1 a.m. Wednesday, but in an order released later that morning, the court temporarily halted Giles' ruling. The court's three liberal justices voted to deny Virginia's request for a stay.
Xiao Wang, director of the University of Virginia’s Supreme Court Litigation Clinic, told VPM News on Tuesday that Supreme Court case review often takes place over months.
“There's a sort of ordinary process for the discussion of Supreme Court cases, and it's pretty slow,” he said. “These 24- to 48-hour timelines, these are not necessarily what many lawyers operate under most days, and they're certainly not what the court [usually] operates under.”
In an August executive order, Youngkin ordered daily voter list maintenance, rather than the monthly maintenance used by the Virginia Department of Elections and the Department of Motor Vehicles. In that order, Youngkin said 6,303 noncitizens had been removed from the list of registered voters since he took office in January 2022.
An administration official later told VPM News that the number represented “transactions” and could mean the same person was counted more than once.
The U.S. Department of Justice and civic groups sued earlier this month, arguing Youngkin's executive order ran afoul of federal National Voter Registration Act restrictions on voter list maintenance.
Last week, Giles agreed and said the state must pause its voter removal process and return approximately 1,600 people in time for Election Day. Virginia immediately appealed, but the order was upheld by the U.S. Court of Appeals for the 4th Circuit on Sunday. Virginia then took the case to the Supreme Court.
“The district court entered a burdensome mandatory injunction on the eve of an election,” said Virginia in its request to Chief Justice Roberts on Monday. “The injunction is based on a misinterpretation of the NVRA [National Voter Registration Act], which does not prohibit Virginia from removing noncitizens from its voter rolls.”
The arguments surround a provision of the NVRA that bars systematic removal of voters in the 90 days before an election. Youngkin signed his order Aug. 7 — exactly 90 days before Election Day.
Virginia has been removing people from rolls monthly since at least 2010 under a state law passed in 2006, the state said in its application to the Supreme Court.
“Everyone agrees that States can and should remove ineligible voters, including noncitizens, from their voter rolls. The only question in this case is when and how they may do so,” U.S. Solicitor General Elizabeth Prelogar said Tuesday in a response.
By Tuesday afternoon, multiple uninvolved parties had filed amicus briefs to voice support for both sides in the case.
The state’s stance was backed by a group of Republican state attorneys general, and the national and Virginia Republican parties.
Barbara Comstock, who previously represented Virginia’s 10th Congressional District, was among a group of former Republican members of Congress to write in support of the federal government and the civic groups.
Wang said amicus briefs are often more of a public-facing opinion by a third party on the litigants’ behalf, rather than central to the court’s decision-making process.
“That might attract the court's attention, but it seems like here we've crossed that Rubicon,” he told VPM News. “These cases already have the court's attention. They're already requiring the other side to file a response.”
