The nine justices of the U.S. Supreme Court are set to weigh a motion by Virginia seeking to overturn a lower court’s order that added 1,600 Virginians back to the voter rolls. (Photo by Jane Norman/States Newsroom)
The Republican Party of Virginia has urged the U.S. Supreme Court to reinstate Gov. Glenn Youngkin’s executive order removing approximately 6,000 Virginians from the voter rolls, filing an amicus brief on Tuesday in support of the governor’s efforts.
The party’s brief reached the court one day after Virginia filed an emergency stay asking the Supreme Court to block a federal court’s order for the state to add 1,600 people back to the voter rolls.
In its filing, the state GOP argues that the removal of illegally registered non-citizens from Virginia’s voter rolls should not be restricted by the “quiet period,” a federally mandated time frame close to an election during which systematic changes to the voter rolls are limited.
However, in a separate amicus brief also filed on Tuesday, a group of prominent Republicans who formerly served in Congress and are outspoken critics of the GOP’s presidential nominee Donald Trump – including Denver Riggleman, Barbara Comstock and Adam Kinzinger — are urging the Supreme Court to deny Virginia’s request for an emergency stay and uphold the lower court’s ruling.
In their filing, the former lawmakers argue that while the National Voter Registration Act of 1993 (NVRA) authorizes “truly individualized removals” of voters from the rolls at any time, the law specifically seeks to prevent sweeping purges that could disenfranchise eligible voters rather than targeted removals of ineligible individuals.
“To protect the right to vote from the inherent errors, vagaries, and bureaucratic swamp of last-minute systematic removals, Congress imposed the quiet period provision to protect voters in the immediate run-up to elections — at which point it might be impossible or impractical to correct a wrongfully terminated registration status,” the brief said.
The “daily systematic removal program” recently undertaken by Virginia is precisely what the NVRA’s quiet period provision forbids, the filing continues.
“It is not a close case; it is instead a paradigmatic violation of Congress’s design. The fact that this last-minute systematic program has in fact disenfranchised eligible Virginia voters only confirms the wisdom of the NVRA’s plan and the illegality of this scheme. To hold otherwise would thwart the bipartisan congressional consensus underlying the NVRA.”
Virginia Republicans argue in their own filing from Tuesday that even if the NVRA applies to efforts to remove illegally registered noncitizens from the voter rolls, Virginia’s process is “sufficiently individualized” and that it does not constitute the kind of “systematic” effort to remove individuals from the voter rolls prohibited during the “quiet period.”
The GOP filing claims that the Virginia Department of Elections’ practice of comparing voter rolls with data from the Department of Motor Vehicles to identify non-citizens is selective enough to sidestep the restrictions imposed by the quiet period.
“Courts have correctly interpreted ‘systematically remove’ to mean programs that make decisions about voters’ eligibility based on mass information collected by third parties rather than individualized information or investigation,” the brief said.
Finally, the Republicans contend that allowing the lower court’s ruling to stand would cause “irreparable harm” as the Nov. 5 election nears.
“The consequence of that order is that non-citizens — who all agree cannot legally vote — will be added back on the voter rolls at the last minute, diluting legitimate votes and exposing those non-citizens to a substantial risk of criminal prosecution should they misunderstand the lower courts’ order as a greenlight for them to vote unlawfully,” the filing said.
The GOP also asserts that there is no risk of harm to eligible voters if the executive order remains in effect. Virginia law allows same-day registration, providing an alternative for those erroneously removed to cast a ballot on Election Day. According to the amicus brief, “no legal voters could or would be disenfranchised” if the executive order is upheld.
On Monday, Virginia Attorney General Jason Miyares filed the commonwealth’s appeal to Chief Justice John G. Roberts, seeking a stay on federal Judge Patricia Tolliver Giles’ Oct. 25 order requiring the reinstatement of individuals removed from Virginia’s voter rolls.
Giles had ruled that Youngkin’s order, issued in August, may have inadvertently included eligible voters. The order directed the Department of Motor Vehicles to send daily lists of individuals identified as noncitizens to the State Board of Elections for immediate removal from voter rolls.
However, the 2006 state law on which Youngkin’s directive is based calls for this process to occur on a monthly basis.