Earlier this week, the state of Virginia found itself in the Supreme Court, requesting an emergency stay of a district court order that required Virginia to return some 1,600 people to the voter rolls. Pursuant to its state statute that had been around since 2006, the Commonwealth of Virginia eliminated from its voter rolls any self-identified noncitizen. Under normal circumstances, this would be a noncontroversial measure. But the Department of Justice and several immigrant rights organizations accused Virginia of violating the National Voter Registration Act (NVRA) by systematically purging its eligible voter lists during the ninety-day “quiet period” preceding a federal election. This set off a chain of events that culminated in the Supreme Court decision.

Federal Law in Voting

The Constitution assigns the states the primary role in deciding how they conduct elections even for federal office. States solely determine who is eligible to vote—whoever is eligible to vote in an election for the state legislature is eligible to vote in federal elections (subject to constitutional amendments that are not relevant in this case). But Congress can override state law when it comes to how voting occurs as it may govern the time, place, and manner of holding elections.

Under that authority, Congress passed the NVRA (also sometimes called the Motor Voter Act) in 1993. It requires states 1) to simplify their voter registration to increase participation in voting by eligible citizens by using a standard federal form and 2) to allow voters to register at state DMVs or by mail. The NVRA also manages how states maintain their lists of eligible voters, which means removing the names of voters who moved, died, or otherwise became ineligible to vote where they were registered.

States cannot, however, undertake “any program” that would “systematically remove the names of ineligible voters from the official lists” within ninety days of a federal election, unless for reasons of criminal conviction, incapacity or death. There is no prohibition on individualized removals from the official list.

Virginia’s Removal of Non-citizens From Its Voter Lists

Only citizens may vote in federal elections; it is a state and federal crime for non-citizens to do so. Since 2006, Virginia has asked driver’s license applicants about their citizenship status, and it reviews documents supplied by applicants which indicate non-citizenship. Virginia’s DMV then sends that information to the Department of Elections (ELECT), which verifies citizenship status through the U.S. Department of Homeland Security and cancels the voter registration of any non-citizen. Virginia notifies apparent non-citizens of its intent to cancel their registration, and then notifies them when the registration is cancelled. Anyone who is mistakenly removed from the voter list may affirm their citizenship status in response to those cancellation notices, or simply re-register at a polling station when they go to vote.

On August 7, 2024, Governor Glenn Youngkin issued Executive Order 35, which expedited Virginia’s process. Rather than reviewing DMV and DHS records on a monthly basis, Virginia ELECT would do it daily until October 14, when ineligible voters would no longer be removed.

The Lawsuit Against Virginia

Virginia was sued on October 7 by several immigrant rights organizations, including the Virginia Coalition for Immigrant Rights, the League of Women Voters of Virginia, and African Communities Together. They alleged Virginia’s voter purge was discriminatory. The U.S. Department of Justice (DOJ) followed with its own lawsuit days later, alleging that Virginia’s removal of non-citizens violated the NVRA’s ninety-day “quiet period” provision.

Virginia denied that its removal of voters was discriminatory. And it argued it was not a “systematic” program, since voters were removed on an individual basis according to information they provided to the state. And in any case, the NVRA does not prevent removal of voters during the “quiet period” if those voters are non-citizens who were never eligible to vote in the first place. Finally, Virginia claimed that DOJ’s lawsuit violated the Purcell doctrine, which bars federal interference with state election law in the leadup to an election. Virginia said DOJ waited until the “last, and worst, possible moment to challenge election procedures.”

Emergency Litigation

The lawsuit flew through the courts. By October 25, a Virginia district court issued a preliminary injunction. The court agreed with DOJ and the other plaintiffs that Virginia’s actions were a program for systematic removal of ineligible voters, which NVRA prohibits. And the court not only enjoined Virginia’s removal program, it ordered the state to restore each of the approximately 1,600 self-identified non-citizens, and to inform those individuals that they could “cast a regular ballot on Election Day in the same manner as other eligible voters.” Virginia could, however, continue to “cancel the voter registration of non-citizens through individualized review.” Virginia was ordered to comply by Wednesday, October 30.

Virginia promptly appealed to the Fourth Circuit Court of Appeals to stay the district court’s order—and promptly lost. On October 28, the Fourth Circuit denied Virginia’s request for a stay. It agreed the state was conducting a program of systematic removal that violated the NVRA. The Supreme Court was next. Virginia asked for an emergency stay that would enable the state to keep the 1,600 self-identified non-citizens from voting in the election.

A coalition of twenty-six states, led by Kansas, chimed in with an amicus brief to argue that DOJ’s interpretation of the NVRA was unconstitutional, since it would mean that Congress decided voter qualifications—a state right under Article I—and that the court should avoid that unconstitutional interpretation by accepting Virginia’s interpretation instead. This was a constitutional avoidance argument that was in the undercurrent of the litigation but not explicitly argued by Virginia.

In a one-page order, on October 30, SCOTUS sided with Virginia and stayed the lower court order. No reasons were given for the Court’s decision. Justices Sotomayor, Kagan, and Jackson dissented.  

What’s Next?

Virginia’s case is settled until the election. But the issue is still alive nationally. Two weeks ago, a district court in Alabama enjoined a similar state program following a DOJ complaint. Alabama has not appealed the order, but the Supreme Court’s Virginia decision may change that.

And immigrant rights groups are not deterred. The morning after the Supreme Court’s decision, the ACLU challenged a similar program in Iowa. DOJ has not yet joined the suit, but Iowa’s Attorney General Brenna Bird announced she had been contacted by DOJ officials and pressured to change her state’s policy. That case remains pending. However, given the ruling of the Supreme Court, the challengers face an uphill battle.As this case demonstrates, election law cases are high stakes and are decided at a rapid pace. It also demonstrates a good reason why the Framers left voter qualifications as a state matter. The people of a particular state are in the best position to determine the qualifications of voters within the state (subject to constitutional limitations). If the federal government can use a procedural statute to prevent a state from enforcing voter qualifications, it is overriding the voter qualifications of the people of that state, effectively making Article 1, Section 2, of the Constitution null and void. At least for the time being, the Supreme Court has prevented that from occurring.

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