A voting sign. A group of individual voters, voting rights groups and the U.S. Department of Justice has sued Alabama after officials moved to “inactivate” voters they said were noncitizens. (Bill Pugliano/Getty Images)
A federal judge Tuesday appeared inclined to grant a preliminary injunction against an attempt to remove voters state officials claim are noncitizens.
U.S. District Judge Anna Manasco said she believed the U.S. Department of Justice (DOJ) was likely to succeed to in its arguments that the move from Alabama Secretary of State Wes Allen in August violated the National Voter Registration Act (NVRA) and a requirement that election changes take place no later than 90 days before an election.
But Manasco said that her thoughts were preliminary, and she needs look at the standing of the private plaintiffs.
Allen moved to “inactivate” voters who he said had noncitizen identification numbers. A group of individual plaintiffs and voting groups sued last month, arguing the move violated the NVRA and alleged that naturalized citizens had been caught up in it. The DOJ filed its own lawsuit later that month.
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In response to questions, Allen’s office sent a statement they had sent previously, in which Allen said it was his “constitutional duty to ensure that only American citizens vote in our elections,” but declined further comment due to the litigation.
Messages were left with the Attorney General’s Office, the Civil Rights Division of the Department of Justice and organizations of the plaintiffs’ attorneys. The Campaign Legal Center, one of the organizations representing the plaintiffs, said they were unable to provide a statement Tuesday afternoon.
The attorney general’s office and the DOJ filed separate arguments in the case on Monday. The attorney general’s office argued that four private individual plaintiffs in the lawsuit lacked standing because they are active in the voting system and can vote this election. They wrote that the organizations lacked standing because they could not articulate a harm to their members and could not sue on their own behalf.
The office also argued the 90-day limit was irrelevant because the removals were individual and not systemic. The state, the brief said, is allowed to verify and act on registrations after registration, such as in change of address situations.
“Voters are not removed merely for their presence in a database; they are asked to engage on a case-by-case basis with the State about their status,” the filing said.
The attorneys wrote that the plaintiffs did not state viable discrimination claims because they argued that the secretary of state’s actions targeted and burdened naturalized citizens. The state argued that the reasoning for the action was more likely to protect election integrity than to be discriminatory.
“Here, the more likely explanation than discrimination is exactly what the secretary has said — that he has an interest in protecting election integrity and ensuring only lawful votes are cast,” they wrote.
Defendants also wrote that the form and the threat of prosecution did not burden the right to vote.
“There can be no burden on the right to vote stemming from the attorney general tweeting that violators of election laws will be prosecuted,” they wrote. “Prosecuting crimes is his job.”
The DOJ argued that the state violated the 90-day provision, known as the quiet period provision, and that the state’s actions would be covered in part because of an increased risk of affecting an election as it gets closer.
Attorneys for DOJ, which is seeking a “remedial mailing” to provide clear information on voters’ status, also wrote that the state disregarded the confusion they caused and misrepresented the relief needed, writing that that voters would need to fix their inactive status before they could vote.
“A remedial mailing directed by this court would allay voter fears and confusion and put a definitive end to the shifting guidance offered to registrants targeted by the program,” they wrote.
DOJ argued that state officials did not understand the difference between the private plaintiffs and the United States, which is harmed by a violation of federal law. They also wrote that the defendants diminished legitimate concerns by U.S. citizens harmed by the program.
“The requested injunction balances informing eligible citizens of their voting rights and advising noncitizens that they are ineligible to vote in accordance with the enacted purposes of the NVRA,” they wrote.
The court will reconvene Wednesday morning.
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