Christmas Comes Early for Youngkin with Surprise SCOTUS Win
Source: Kjetil Ree 2007
In the sleepy days of early August, Virginia Governor Glenn Youngkin set in motion what would become a seminal pair of lawsuits, ultimately leading to a striking, if opaque, Supreme Court decision. Governor Youngkin issued Executive Order No. 35 on August 7, 2024, exactly 90 days before the November election. The five-page order laid out the state’s election integrity initiatives—including ballot machine testing, 24/7 drop box monitoring, and retention periods for paper ballots—and boasted of Virginia’s recent data-sharing agreements with seven other states.
Skimming the order, it could read as fairly innocuous until page four, which instructs the state to remove ineligible voters on a daily basis, including those who no longer qualify for state residence, deceased voters, individuals with felony records, those who have been deemed mentally incapacitated, and most notably, those individuals whose citizenship is unverified in DMV records. Individuals who fell into this last category were to be notified of their removal and given fourteen days to prove their citizenship in order to be reinstated. The governor further instructed registrars to share the names of these individuals with state prosecutors. According to the order, 6,303 individuals had already been removed from voter rolls between January 2022 and July 2024 under this procedure. Virginia Attorney General Jason Miyares publicly lauded the removals the same day the order was issued, posting on X that he was “proud of my office’s work to help ensure election integrity.”[1]
States have significant autonomy in determining their election procedures but still must comply with federal law. Section 8(c)(2) of the National Voter Registration Act (“NVRA”) designates the 90 days preceding an election as a quiet period during which states are prohibited from executing any programs whose purpose is to systematically remove ineligible voters from registration lists.[2] Executive Order No. 35, which was issued on the first day of the quiet period, potentially violated the NVRA in its instruction that the state continue to remove registered voters whose citizenship was in question. Court records confirm that the removal program did in fact continue well into the quiet period, as stated by Virginia Department of Elections Commissioner Susan Beals in a September 19, 2024 letter to Governor Youngkin.[3]
On October 7, two months after the executive order was issued, the Virginia Coalition for Immigrant Rights, which is a coalition of over forty community organizations, joined with two other nonprofits to sue Commissioner Beals, Attorney General Miyares, and other election officials, alleging that the removal of possible noncitizens from voter rolls violated multiple provisions of the NVRA.[4] In addition to alleging violation of Section 8(c)(2) of the NVRA, plaintiffs claimed that the state had violated the NVRA’s uniformity and nondiscrimination in registration requirements, contending that the removal program disproportionately targeted naturalized citizens and thus by proxy targeted voters based on their national origin. Plaintiffs further alleged that Commissioner Beals’ refusal to provide plaintiffs with a list of voters who had been identified as noncitizens within a reasonable amount of time violated the NVRA’s public disclosure requirements.[5]
The Department of Justice rapidly followed suit, filing a complaint against the Commonwealth of Virginia, the Virginia State Board of Elections, and Commissioner Beals on October 11, though it was more narrowly tailored, alleging only violations of Section 8(c)(2) of the NVRA. The two cases were consolidated, with the nonprofits’ case becoming the lead and all plaintiffs filing for preliminary injunctions stopping what had been dubbed the Purge Program. The Eastern District of Virginia held a hearing, during which the defendant stated on the record that 1,600 registrants had been removed under the Purge Program within the quiet period as of October 2.[6] Thus, the defendants did not dispute the removal of registrants under the Purge Program, nor did they strongly dispute the program’s systematic nature. Instead, they argued that the NVRA’s quiet period provision did not apply to registrants who were ineligible to vote at the time of their registration. The court soundly rejected this argument. To this writer, even if the court had accepted the defense’s argument, it would still not account for those registrants whose latest DMV paperwork indicated that they were not citizens but had since naturalized and subsequently registered to vote, meaning that they would have still been protected from removal under the defendant’s interpretation. The defendants conceded on the record that the removal process involved no individualized inquiry beyond database searches, meaning that should there be a discrepancy between a registrant’s DMV records and their actual citizenship status, the state would not know this, and thus be unable to know whether it was removing someone who, under its own argument, was protected by the NVRA.
The court issued a preliminary injunction, to be in effect through the general election, ordering the state to reinstate all registrants who had been removed under the Purge Program within the quiet period,[7] submit a report of every removed voter to the court under seal, and undertake outreach and education measures related to the reinstatement. The Fourth Circuit affirmed the order on appeal, except for one of the lower court’s education and outreach requirements.
Here is where the great twist arose: the Supreme Court, without explanation, agreed to hear the state’s emergency appeal, reversed the Fourth Circuit’s decision, and struck the preliminary injunction. All those voters who were purged would either have to (1) remain purged, (2) prove their citizenship to become reinstated, if they were within the 14-day grace period, or (3) register and submit a provisional ballot[8] on election day.[9] It remains unknown as to whether those purged voters successfully re-registered and voted. This writer would not think it unreasonable to be concerned about the possible precarity of provisional ballots, in light of the current climate of litigiousness when it comes to election procedures. Mail-in ballots and early voting are already the source of significant litigation across the country. It does not seem to be a stretch to expect provisional ballots to be vulnerable to erosion by litigation, in particular after the Supreme Court’s surprising ruling.
To conclude with a brief word on the broader implications of this case, it is worth noting that eight amicus briefs were submitted to the Supreme Court within two days. Only one of these briefs advocated for a denial of the stay: that of the Former Members of Congress. The brief was signed by seventeen former Republican members of Congress, two of whom were from Virginia and a number of whom had voted for the NVRA. What of the other seven amici? They all vociferously urged the court to grant the stay, which begs the question, where were the rest of the plaintiffs’ supporters? Perhaps the bedrock liberal institutions expected this to be an easy win. Even so, where were the scrappy nonprofits, the law students looking to make a name for themselves, the academics? The State of Kansas marshaled the signatures of twenty-five other attorneys general in support of its brief advocating a stay of the injunction. Among the signatories was the Alabama attorney general, whose state’s voter purge policy was blocked by a preliminary injunction and was not appealed to the Supreme Court.[10] The attorney general of Florida was another signatory—a similar case arose in Florida in 2014[11] and was cited in the Fourth Circuit’s opinion.[12] In the wake of this decision, there will likely be a spotlight on NVRA cases like this one. Activists, attorneys, scholars, and students will jump in and get involved—as they should. But what about the next curveball? Who is reading the circuit dockets, looking for the next case like this one, the proverbial “upset” in the all-too-serious game of election litigation? Next time, who will the amici be?
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ejb6zt@virginia.edu
[1] https://perma.cc/6JGJ-KLJD.
[2] The NVRA makes the following exceptions to this provision: (1) removal at the request of the registrant, (2) removal pursuant to state laws barring registration due to criminal conviction or mental capacity, (3) deceased voters, (4) changes in residency that would disqualify registrants.
[3] E.D. Va. Docket No. 1:24CV01807, Complaint Exhibit 3.
[4] E.D. Va. Docket No. 1:24CV01778, Complaint.
[5] Virginia Coalition for Immigrant Rights v. Beals, 2024 WL 4601052 (4th Cir. 2024)
[6] SCOTUS Docket No. 24A407, Lower Court Orders/Opinions, Page 246.
[7] With certain caveats: if voters themselves request to be removed or are barred because of criminal conviction, mental capacity, or death, then they fall outside the scope of the order. The court also explicitly noted on the record that its decision on the preliminary injunction would only address those registrants who had been removed during the quiet period, although the private plaintiffs’ complaint requested reinstatement of all registrants removed pursuant to the program.
[8] https://www.elections.virginia.gov/registration/same-day-voter-registration/.
[9]https://apnews.com/article/supreme-court-virginia-voter-registration-purge-ba3d785d9d2d169d9c02207a42893757.
[10]https://campaignlegal.org/cases-actions/protecting-alabamians-voter-purges-alabama-coalition-immigrant-justice-v-allen.
[11] Arcia v. Florida Secretary of State, C.A.11 (Fla.) 2014, 772 F.3d 1335
[12] Virginia Coalition for Immigrant Rights v. Beals, 2024 WL 4601052 (4th Cir. 2024)
