Supreme Court allows Virginia effort to strike possible noncitizen voters
A police officer outside the Supreme Court in Washington on July 1. (Amanda Andrade-Rhoades for the Washington Post)
A divided Supreme Court cleared the way Wednesday for Virginia officials to remove about 1,600 voters from the state’s registration rolls less than one week before the presidential election.
Gov. Glenn Youngkin (R) asked the justices to intervene after two lower courts blocked his efforts to cancel the registrations of voters who could be noncitizens—an issue Republican officials have seized on nationally to energize supporters even though noncitizen voting is extremely rare.
Youngkin signed an order in August to expedite the removal of registered voters whose driver’s license applications indicated or suggested that they were not U.S. citizens. The effort was opposed by the Justice Department and immigrant rights groups, who said eligible voters were being kicked off the rolls because of outdated or erroneous information.
As is typical in emergency situations, the Supreme Court’s brief order did not explain the majority’s reasoning. The three liberal justices—Sonia Sotomayor, Elena Kagan and Ketanji Brown Jackson—noted their dissent, saying they would have denied Youngkin’s request to allow the voter purge.
In a statement on X, Virginia Attorney General Jason Miyares called the decision a “victory for commonsense and election fairness.”
The high court is increasingly being drawn into election-related disputes as voters begin casting ballots ahead of next week’s contest between Republican Donald Trump and Democrat Kamala Harris. Legal battles over voting rules are percolating largely in battleground states such as Pennsylvania, Georgia and Nevada, and the justices are likely to get pulled into additional litigation in the coming days.
In the Virginia case, the challengers sued state officials, saying they were making changes too close to the election and removing eligible voters in their efforts to remove noncitizens. Fully qualified voters who skipped or overlooked the question have been caught up in the purge, as have those who became citizens years after their first interaction with the Department of Motor Vehicles, the challengers said.
“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,” Solicitor General Elizabeth B. Prelogar, representing the Biden administration, told the justices in court papers.
Across the country, Republicans have backed ballot measures in eight states to specify that only U.S. citizens are participating in elections, even though noncitizen voting is already restricted in all state and federal elections. Noncitizens are permitted to vote in school or municipal elections in 19 communities, including Washington, D.C.
Last week, U.S. District Judge Patricia Tolliver Giles ruled against Youngkin, saying a federal law known as the National Voter Registration Act prohibits states from purging their voter rolls within 90 days of a federal election. Giles halted the program until the day after the Nov. 5 elections and directed the state to send letters to all 1,600 people purged from the rolls, instruct registrars to reinstate those people and publicize that the removal process has stopped.
“What I find is a clear violation of the 90-day quiet provision,” Giles said in court, referring to the federal law. “It is not happenstance that this executive order was announced on the 90th day.”
On Sunday, a unanimous three-judge panel of the U.S. Court of Appeals for the 4th Circuit upheld the decision, and Virginia asked the Supreme Court to intervene.
Youngkin told the justices in a court filing that the forced restoration of voters would create confusion, overload election machinery and “likely lead noncitizens to think they are permitted to vote, a criminal offence that will cancel the franchise of eligible voters.”
Trump tweeted that Giles’s ruling was “crazy” and proof of a “truly Weaponized Department of ‘Injustice.’”
Separately, the justices are considering a request from Pennsylvania Republicans and the Republican National Committee to halt a Pennsylvania Supreme Court ruling that allows voters who improperly cast absentee ballots to submit a provisional ballot at a polling place.
In a narrowly divided ruling last week, Pennsylvania’s high court said election offices must count in-person provisional ballots cast by voters who previously submitted absentee ballots without the required secrecy envelopes. The case began as a challenge by two western Pennsylvania voters whose provisional ballots were disqualified in the 2024 primary because they were not submitted correctly.
The Pennsylvania Supreme Court denied a Republican request on Monday to put the rule on hold while they appeal to the Supreme Court.
Republicans told the justices that the state court’s ruling directly contravenes the ballot procedures prescribed by the Pennsylvania legislature, creating “a serious likelihood that Pennsylvania’s already-commenced 2024 General Election … will be tainted by the unlawful counting of provisional ballots cast by individuals whose mail ballots were timely received and invalid.”
New York University law professor Richard Pildes estimated the challenge could affect anywhere from roughly 1,000 votes to a little more than 8,000.
In Nevada, the state Supreme Court on Monday turned aside an emergency Republican challenge to a requirement that election officials count absentee ballots that don’t have a postmark and arrive up to three days after the election. The Republican National Committee, Nevada Republicans and the Trump campaign challenged guidance from the secretary of state’s office, saying state law prevents the counting of ballots that are not postmarked.
A lower court and the Nevada Supreme Court found the plaintiffs did not have legal grounds to block the rule. Legal experts expect the case to be appealed to the Supreme Court in the coming days.
In a similar case from Mississippi, the conservative U.S. Court of Appeals for the 5th Circuit said federal law preempts a Mississippi statute that allowed absentee ballots postmarked by Election Day to be counted if they arrive up to five days afterward. However, the ruling will probably not affect November’s elections. The panel, made up of three judges nominated by Trump, left it for the lower court to decide the remedy. Legal experts expect the case could eventually make its way to the Supreme Court.
The Mississippi case could be significant in future elections because nearly two dozen states have rules that allow them to count certain ballots that arrive after Election Day.
