Virginia officials filed an emergency application with the U.S. Supreme Court on Oct. 28 asking the justices to allow the state to remove suspected noncitizens from the voter rolls.
The application was directed to Chief Justice John Roberts, who oversees emergency litigation from Virginia. The lead applicant, Susan Beals, is Virginia’s Commissioner of Elections.
The U.S. Court of Appeals for the Fourth Circuit found unanimously on Oct. 27 that taking the names off the voter rolls within 90 days of an approaching federal election appears to violate the National Voter Registration Act.
Federal elections are scheduled for Nov. 5. The Supreme Court previously held in Purcell v. Gonzalez (2006) that courts should not change rules close to an election because doing so creates a risk of causing confusion.
Virginia counters that the legal provision is not relevant because the names being removed are not those of U.S. voters.
Such an interpretation would be problematic because it would give the words “voters” and “registrant” an identical meaning, the circuit court said.
Moreover, Virginia had not demonstrated its appeal was likely to succeed or that it would suffer irreparable harm should the appeal be denied, the circuit court said as it affirmed an Oct. 25 ruling by U.S. District Judge Patricia Tolliver Giles.
Giles wrote that Virginia was still free to cancel the voter registration of noncitizens individually or to investigate “noncitizens who register to vote or who vote in Virginia’s election.” The ruling applies only to Virginia’s “systematic” effort to remove noncitizens that began after Aug. 7, she added.
In the new application, Virginia said it objected to the district court decision because “less than two weeks before the 2024 Presidential Election, and more than a month into early voting, the district court ... ordered Applicants, Virginia and its election officials, to place over 1,600 self-identified noncitizens back onto Virginia’s voter rolls, in violation of Virginia law and common sense.”
Virginia said the Supreme Court should stay the district court ruling because it “is based on a misinterpretation of the [National Voter Registration Act], which does not prohibit Virginia from removing noncitizens from its voter rolls.”
The ruling would also “impose significant cost, confusion, and hardship upon Virginia, creating a massive influx of work for its registrars in the critical week before the election, and likely confusing noncitizens into believing that they are eligible to vote.”
Roberts directed co-respondents Virginia Coalition for Immigrant Rights, League of Women Voters of Virginia, African Communities Together, and the federal government to respond to the application by 3 p.m. on Oct. 29.
