The Supreme Court ruled Wednesday that at least 1,600 people — including some known to be U.S. citizens with full voting rights — can be removed from Virginia’s voter rolls before Election Day. That of the conservative supermajority orderissued on the shadow roleessentially nullified a landmark federal law banning last-minute voter purges. All three liberal justices disagreed. Ominously, the Court’s intervention signals to other states that they may begin purges at the eleventh hour, suppressing the vote through legal gaming that Congress sought to outlaw.
Wednesday’s order is a major victory for Virginia Governor Glenn Youngkin and Attorney General Jason Miyares, both Republicans, in their quest to expand states’ authority to cancel voter registrations just before voting begins. And it is clear offence of federal law. A federal statute, the National Voter Registration Act of 1993, prohibited any “state program” that “systematically” “removes ineligible voters from the official rolls of eligible voters,” beginning 90 days before federal elections. Congress passed the statute in recognition of the obvious fact that these purges were often overtaken eligible voters, creating confusion and threatening civil rights. Nevertheless, Youngkin issued an executive order exactly 90 days before the Nov. 5 election, which mandates a daily series of voter purges.
Youngkin claimed the program targeted only non-citizens. But he lied: his program reached American citizens in two ways. Primarily, it targeted Virginians who checked a box on a DMV form to indicate they were not citizens. But due to poor design of this form, a surprisingly large number of citizens accidentally check this box. Furthermore, many foreigners who checked this box years ago have since become naturalized U.S. citizens, who can of course vote like any other citizen. Second, Youngkin’s program compared the names of alleged noncitizens on the voter rolls against a database of noncitizens maintained by the Department of Homeland Security. Subsequently, the voters whose names supposedly appeared in the database were removed. But this database belongs to the government own admissionincomplete and imperfect, and comparing the list with a state’s voter rolls can easily lead to false matches.
These shortcomings are not speculation: reporters have already found American citizens, to their great surprise, became involved in Youngkin’s purge. Advocates opposed to the program have done so also identified a number of civilians were marked for removal by the purge. Now, if these citizens want to vote, they must re-register at the polls (if they bring the proper documentation), cast a provisional ballot, and hope that officials decide to count it.
In light of the blatant illegality of the program, a federal judge it stopped on Friday. The United States Court of Appeals for the 4e The circuit kept it frozen a Sunday order. Miyares, the attorney general, that is petition filed the Supreme Court for emergency intervention, supported by 26 red states And a host from Donald Trump-affiliated “election integrity” groups. Finally the Supreme Court on Wednesday stayed the lower court’s order, allowing the purge to proceed. It did not explain its reasoning. Because the court issued its order on the shadow docket without full information or a written opinion, it did not indicate how each judge voted. But all three Liberals noted their dissent, indicating it was most likely a 6-3 decision by the Conservative supermajority.
The Supreme Court’s action is truly shocking. It has been settled law for more than thirty years that states cannot do exactly what Virginia has done here. Congress could do that couldn’t have been clearer that these purges are prohibited because the risk to citizens’ civil rights is unbearable. Just two weeks ago, a Trump-appointed judge in Alabama blocked for this reason a similar purge.
So why did SCOTUS intervene in the first place? Its silence forces us to speculate. Perhaps the majority accepted Virginia’s argument that its program was not the kind of “systematic” purge prohibited by federal law because it took an “individualized approach.” If so, then the majority has effectively overturned this law altogether. All the state did was compare data fields; it did not investigate each voter by name to ensure they were in fact ineligible. This program was therefore a typical example of a systematic purge. Or, to put it another way, if this program was not systematic, then there was never a purge and the federal ban was annulled.
Similarly, Virginia argued that noncitizens were never eligible to vote and therefore could not be “voters” protected by federal law. If the 4e Circuit explainedThis interpretation undermines the text and purpose of the statute. It would create a loophole that legalizes purges that Congress tried to ban, under the pretext that the targeted individuals are not real “voters” at all. So again the problem arises: if this program is legal, then so is every state now has one simple trick to circumvent federal law, and Congress’s order isn’t worth the paper it’s printed on.
There is another possibility for the SCOTUS decision: the majority may have found that the lower courts’ decisions were violated the Purcell principle. This doctrine argues against judicial interference with voting laws shortly before elections to avoid voter confusion. But the Purcell principle cannot plausibly apply here, because Congress has given federal courts an explicit mandate to stop states’ last-minute efforts to purge the voter rolls. To use Purcell tying the hands of the judiciary in this situation would fatally undermine Congress’s own crystal-clear directive. It would prevent federal courts from carrying out their obligation to enforce federal law. And not just any federal law, but the National Voter Registration Act, a historic statute designed to protect citizens’ fundamental right to vote.
What is perhaps most frightening about Wednesday’s order is that it prompts other states to also ignore the National Voter Registration Act, just when the law offers voters the strongest protections. Whether the majority believed that Virginia should prevail on its merits remains to be seen Purcellor both, it has given the green light to purges at the eleventh hour.
By siding with Virginia less than a week before the election, the conservative justices have signaled to other states that they can systematically remove voters from the voter rolls — and if a judge tries to stop them, the Supreme Court will back them to stand. Their decision is a terrible omen for others in progress election cases that could tilt a close race toward Trump. And after November, it appears that the National Voter Registration Act is in grave danger before the Supreme Court. Virginia set up this dispute as a test case, and it prevailed. It’s now open season on the electoral rolls. And its triumph could give other red states carte blanche to clear the tables on the eve of all future elections.