SCOTUS (Temporarily?) Reinstates Virginia's Voter Purge Program
The state of Virginia launched a statewide Purge. But this isn’t the fun kind (if you could even describe the 2013 dystopian horror film as that). In Virginia’s version, lots and lots of aspiring voters got purged from the registration.
There’s been a lawsuit against it, of course. But with the election looming, the plaintiffs have had to rely on the emergency injunction process. They were successful, getting a federal district court to temporarily block the law in the lead up to Election.
But the highest court in the land just overturned that block. Let’s rewind.
Virginia’s Purge
At the center of the litigation is a controversial voter removal initiative, referred to as the "Purge Program," which was announced by Virginia Governor Glenn Youngkin through an executive order this past August. The Purge Program aims to systematically remove individuals identified as noncitizens from the voter rolls.
According to the plaintiffs, the program relies heavily on outdated data that stretches back 20 years, largely from the Department of Motor Vehicles (DMV). The Purge Program apparently mandates daily updates to the voter registration list, identifying potential noncitizens based on DMV data and requiring them to affirm their citizenship within 14 days to avoid cancellation of their registration.
The implementation of the Purge Program has allegedly been swift and systematic, with the Department of Elections and county registrars receiving and acting on daily noncitizen data from the DMV. The plaintiffs claims that counties such as Arlington, Fairfax, and Loudoun have canceled registrations and referred individuals for criminal investigation based on the Purge Program's findings.
Criticisms of the Program
The plaintiffs criticize this process for multiple reasons, one being its alleged lack of individualized analysis. They also argue that the program's reliance on outdated DMV data has led to erroneous cancellations of voter registrations for both naturalized and U.S.-born citizens, who may have been incorrectly flagged as noncitizens due to clerical errors or outdated records.
Another issue for the plaintiffs is that the Purge Program results in a discriminatory impact, landing largely on naturalized citizens. These are people who may have obtained driver's licenses as legal permanent residents before becoming citizens, are often from communities of color, and have historically faced voting rights discrimination. These citizens are required to provide additional proof of citizenship to remain on the voter rolls, a requirement not imposed on U.S.-born citizens.
All these things may not sound great, but you can’t really bring a lawsuit for it unless it violates some law. Well, the plaintiffs argue that the program violates several provisions of the National Voter Registration Act (NVRA).
NVRA Violations
The NVRA establishes federal requirements for voter registration processes and maintenance of voter registration lists. Specifically, the NVRA is designed to protect voters from improper removal from voter rolls, ensure uniform and nondiscriminatory voter registration practices, and maintain transparency in voter registration activities.
The law limits the requirements that states can impose for voter registration, including proof of citizenship. It requires that voter list maintenance be conducted in a uniform and nondiscriminatory manner. The statute also includes a “quiet period” provision that prohibits systematic voter list maintenance activities, such as removing voters from the rolls, within 90 days of a federal election. Finally, the NVRA mandates that states must make records related to voter registration activities available for public inspection.
The plaintiffs allege that the Purge Program violates all of these provisions. For one, it imposes additional, unnecessary burdens on certain voters to prove their citizenship, contrary to the NVRA's stipulations. They claim that the fact the program uses outdated data and disproportionately targets naturalized citizens makes it in violation of the “uniform and nondiscriminatory” requirement. They point out that the quiet period is violated because Virginia continues to remove voters during the 90 days before an election.
Lack of Response Prompts Lawsuit
Finally, the plaintiffs allege that Virginia officials have failed to provide adequate information about the Purge Program, violating the transparency requirement. The Virginia Coalition for Immigrant Rights and the League of Women Voters of Virginia have made multiple attempts to obtain information about the Purge Program from the state. Despite sending formal requests for records under the NVRA's Public Disclosure of Voter Registration Activities provision, the plaintiffs assert that they have received limited information.
Susan Beals, the Virginia Commissioner of Elections, was apparently supposed to provide comprehensive data on those affected by the Purge Program. Because she failed to do so, the plaintiffs claim that this hindered their ability to assess the full impact of the program and protect the voting rights of those they claim are wrongfully targeted. This alleged lack of transparency and the program's ongoing implementation have prompted the plaintiffs to seek legal intervention to halt the Purge Program and restore what they claim are unlawfully removed voters to the rolls.
Lawsuit Makes its way to SCOTUS
The district court granted the plaintiff’s preliminary injunction to halt the program. It concluded that the program was systematic, as it used a “mass computerized data-matching process” to identify names for removal without individualized investigation, and it found that the NVRA did not require individualized investigation. However, the court found the program did violate the quiet period provision.
The district court issued a bit of an unusual order, in which they instructed the State defendants to “make all reasonable and practicable efforts to educate local officials, poll workers, and the general public on [the] program, the restoration of the voter registrations of impacted voters, and the ability of impacted voters to cast a regular ballot without submitting supplemental paperwork or documentation,” including tracking poll worker training across all counties and independent cities in the Commonwealth.
On appeal to the fourth circuit, the appellate judges largely agreed with the district court. Their only issue was that the court’s order for “educating the public” was confusing, and so they stayed that part, while keeping the preliminary injunction in place.
Virginia then asked the U.S. Supreme Court to step in and temporarily reinstate the Purge Program. The highest court in the land is, of course, too busy to accept most of the cases that appeal to it. But with such an important election coming up, they decided not to ignore this one.
SCOTUS Reinstates Program
In what came as big news for many, SCOTUS obliged the state of Virginia. They reinstated the program, which has temporarily allowed Virginia to remove approximately 1,600 voters from its rolls.
The order was unsigned and did not include a vote count, but Justices Kagan, Sotomayor, and Jackson opposed it. Governor Glenn Youngkin praised the decision, while voting rights groups and the Justice Department criticized it, expressing concerns about wrongfully removing eligible voters.
Importantly, the decision favors the very Republican officials who argue it's necessary to prevent noncitizens from voting. Those incorrectly flagged can still vote using same-day registration and provisional ballots – in theory. But it would be optimistic to say that the program will not continue to make voting unnecessarily hard for some that legally have that right.
Related Resources:
- Denied at the Polls? How To Secure Your Voting Rights (FindLaw's Learn About the Law)
- What Is Voter Suppression? (FindLaw's Learn About the Law)
- Georgia Purges Voter Rolls (Again) (FindLaw's Law and Daily Life)
