Appeals Court Says Virginia Can’t Remove Suspected Noncitizen Voters

A voter receives a sticker after voting in Fredericksburg, Va., in a undated file photograph. Anna Rose Layden/Getty Images

Virginia cannot systematically remove voters they suspect to be noncitizens because the removal likely violates federal law with the upcoming election approaching, a U.S. appeals court ruled on Oct. 27.

The National Voter Registration Act contains a provision that requires states to halt “any program the purpose of which is to systematically remove the names of ineligible voters from the official lists of eligible voters” within 90 days of a federal election. Virginia officials argued that the provision does not cover noncitizens because they are never “voters.”

“That argument 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,” the new ruling from the U.S. Court of Appeals for the Fourth Circuit said.

The proposed interpretation would create problems such as giving different words—“voters” and “registrant”—in the law the same meaning, the court said.

The unanimous ruling was made by U.S. Circuit Judges Toby J. Heytens, Albert Diaz, and Stephanie D. Thacker. The panel was assigned the case.

Virginia Attorney General Jason Miyares said in a statement that Virginia would be appealing the decision to the U.S. Supreme Court.

The appeal will highlight that the more than 1,500 individuals in question identified themselves as noncitizens, Virginia Gov. Glenn Youngkin said. An executive order from the governor resulted in the removals.

Groups that sued over the removal had not commented on the ruling as of the morning of Oct. 28.

A federal judge had on Oct. 25 ordered Virginia officials to stop removing alleged noncitizens from its voter rolls because, she said, eligible voters were affected. The order required officials to direct counties to restore the registrations of the suspected noncitizens.

The order does not prevent Virginia from attempting to remove individuals through individualized investigations into whether they are noncitizens.

In an emergency motion for a stay pending appeal, Virginia officials told the Fourth Circuit on Oct. 25 that about 600 people checked a box at the Department of Motor Vehicles stating that they were not citizens. The remaining approximately 1,000 people were identified through a federal database as being noncitizens.

“The district court based this drastic injunction on a provision of the National Voter Registration Act (NVRA) that does not even apply to the removal of noncitizens and other void ab initio registrations. And even if it did apply to the removal of noncitizens, Virginia’s program complied with it anyway,” the officials said.

Lawyers representing the federal government, which also sued over the program, said in response on Oct. 26 that Virginia’s arguments did not warrant a stay.

“If unremedied, the Defendants’ conduct will cause eligible U.S. citizen voters and the United States irreparable harm; plaintiffs acted promptly within the Quiet Period to discern the nature of the violation and remedy it; and the district court’s narrow injunction as to the impacted voters is a feasible and needed to ensure a remedy,” the lawyers said.

The federal government also recently successfully stopped Alabama from removing suspected noncitizens from its voter rolls.

Sam Dorman contributed to this report.