A divided Supreme Court on Wednesday allowed Virginia to continue a program that state officials say is aimed at removing suspected noncitizens from its voter registration rolls, siding with Republicans in one of the high court’s first significant decisions tied to next week’s election.
The decision, issued without reasoning from a majority of conservative justices, will allow the state to keep off the rolls certain voters it suspects of being noncitizens.
The court’s three liberals – Justices Sonia Sotomayor, Elena Kagan and Ketanji Brown Jackson – dissented. The liberals did not explain their reasoning.
Though the case involved a relatively small number of voters in a state that is not considered a battleground in the contest between former President Donald Trump and Vice President Kamala Harris, the case fed into a wider political narrative being pushed by some Republicans about widespread voting by noncitizens.
“The Biden-Harris administration’s legal meddling was irresponsible, reckless, and political,” Texas Attorney General Ken Paxton said in response to the decision. “States have a constitutional duty to prevent noncitizens from voting. The Supreme Court did the right thing.”
But voting rights groups pointed to evidence that Virginia’s voter purge effort had also caught up citizens who were eligible to vote. Those groups slammed the Supreme Court’s unsigned order as “outrageous” and “disturbing.”
“Every eligible voter has a right to cast their ballot and have their vote counted, and this ruling does not change that,” Harris campaign spokesperson Charles Lutvak said. “Voting by noncitizens remains illegal under federal law.”
Legal experts, meanwhile, were unable to parse meaning from the court’s decision because of the lack of explanation. While that is not uncommon on the court’s “shadow docket,” where emergency cases are usually handled, the court does sometimes leave clues to its rationale in high-profile cases.
In this case, the majority said nothing.
“This is one of the clearest examples of the misuse of the shadow docket,” said Orion Danjuma, counsel for Protect Democracy, who lamented that the groups have “no reasoning to understand” the high court’s call.
Both the program and the legal fight took on sharply political overtones as Trump and other Republicans have fueled false narratives about widespread voting by noncitizens. At issue are about 1,600 voter registrations that Virginia said came from self-identified noncitizens but that a US District Court said hadn’t been fully vetted for citizenship status.
Noncitizens are not allowed to vote in federal elections; none of the lower court rulings had changed that fact.
Trump and other Republicans have seized on claims of illegal voting and that was part of the argument they made to explain the former president’s loss in 2020. But documented cases of noncitizens voting are extremely rare. A recent Georgia audit of the 8.2 million people on its rolls found just 20 registered noncitizens – only nine of whom had voted.
The Virginia case began with an order signed by Virginia Gov. Glenn Youngkin, a Republican, in August that required election officials to take more aggressive steps to match residents who self-identified as noncitizens at the Department of Motor Vehicles against voter rolls and to purge those matches.
Youngkin on Wednesday called the Supreme Court’s order a “victory for common sense and election fairness.”
The state’s voters, he said, “can cast their ballots on Election Day knowing that Virginia’s elections are fair, secure, and free from politically-motivated interference.”
Voting and immigrant rights groups framed the Supreme Court’s decision as “outrageous” and predicted it would sow confusion.
“The Supreme Court allowing Virginia to engage in a last-minute purge that includes many known eligible citizens in the final days before an election is outrageous,” said Danielle Lang with the Campaign Legal Center. “But the voters will decide this election, not the courts. Eligible Virginia voters should know that regardless of this purge they can register to vote on Election Day and cast their ballots.”
A Justice Department spokesperson said the Biden administration disagreed with the order.
“The Department brought this suit to ensure that every eligible American citizen can vote in our elections,” the spokesperson said.
The Biden administration and voting rights groups sued and a US District Court concluded last week that at least some eligible US citizens had their registrations culled under the program. District Judge Patricia Tolliver Giles said that none of the parties involved in the case knew for certain the citizenship status of the purged voters because the information wasn’t verified.
Those opposed to the program relied on a 1993 law, the National Voter Registration Act, which bars states from making “systematic” changes to voting rolls with 90 days of a federal election. The Biden administration said that Youngkin’s order created exactly that kind of systematic program within the so-called “quiet period” mandated by the federal law.
Virginia argued that the quiet period prohibitions applied only to eligible voters, not noncitizens.
None of the lower court orders blocked the state from making individual eligibility assessments, or from ultimately knocking noncitizen voters off the rolls, nor gave noncitizens the right to vote in federal elections. The federal law only bars “systematic” changes.
A three-judge panel of the 4th US Circuit Court of Appeals – all appointed by Democratic presidents – affirmed most of Giles’ ruling, keeping the program paused and required the state to return the 1,600 registrants to the rolls.
In their emergency appeal to the Supreme Court, Virginia election officials relied in part on a still-developing legal theory that warns federal courts against making last-minute changes to the status quo of voting rules before an election. The so-called “Purcell principle” is intended to stop federal courts from getting dragged into last-minute election controversies.
Virginia argued that the federal district court violated that principle by pausing the program. Voting rights groups countered that there was a federal law in play in this instance that specifically allowed plaintiffs to challenge last-minute voting changes.
Lawyers for Virginia also pointed to its option for same-day registration. Those whose registrations were wrongly cancelled could re-register at an in-person polling place by affirming their citizenship.
Virginia’s opponents countered that that option would not solve the issue for purged voters who planned to vote absentee, unaware their registrations had been cancelled and that it risked confusion at polling places – particularly if poll workers weren’t adequately prepared to deal with the scenario.
Because the Supreme Court offered no explanation for its decision, it’s not clear which of Virginia’s arguments were persuasive, or if the majority of justices decided that it was too close to the election for federal courts to be wading into election disputes.
The problem with assuming that the court decided the case based on Purcell and timing is that the National Voter Registration Act’s “quiet period” necessarily involves challenges that come right up against an election, said Richard Briffault, a professor and election law expert at Columbia Law School.
Given that lower courts consistently saw the case as a loser for Virginia, the Supreme Court’s silence was particularly perplexing, he said.
“It’s hard to tell because there’s nothing there,” said Richard Briffault, a professor and election law expert at Columbia Law School. “It’s quite striking.”
This story has been updated with additional details.
Time.news Editor (TNE): Good afternoon, and welcome to our special interview segment. Today, we’re diving into a significant Supreme Court decision regarding Virginia’s voter registration rolls and noncitizen voting. With us is Dr. Emily Cartwright, a legal expert in voting rights and election law. Dr. Cartwright, thank you for joining us.
Dr. Emily Cartwright (EC): Thank you for having me. It’s a pleasure to be here and discuss such a pivotal issue.
TNE: Let’s start with the basics. The Supreme Court’s recent decision allowed Virginia to continue purging suspected noncitizen voters from its rolls. Can you explain the implications of this ruling, especially in the context of the upcoming elections?
EC: Absolutely. This ruling allows Virginia to maintain its program aimed at removing individuals suspected of being noncitizens from the voter registration rolls. The implication here is significant, particularly as it could disenfranchise eligible voters—citizens who may be inaccurately flagged as noncitizens due to errors in the matching process with the DMV.
TNE: You mention disenfranchisement, which is a critical concern. Voting rights groups have slammed this decision as “outrageous.” What evidence do these groups cite to support their fears?
EC: Many voting rights advocates argue that Virginia’s voter purge isn’t just targeting noncitizens. They cite instances where eligible citizens have been mistakenly removed from the rolls. For example, the U.S. District Court indicated last week that some purged voters’ citizenship statuses were unverified. This raises a strong concern about the accuracy and fairness of the process.
TNE: Moreover, there’s a notable division within the Supreme Court itself. The three liberal justices dissented without explanation. How does this kind of lack of reasoning affect our understanding of the court’s motives?
EC: This is indeed troubling. The absence of a detailed majority opinion leaves legal experts and the public without a clear understanding of the rationale behind such a contentious decision. It showcases the phenomena often referred to as the “shadow docket,” where the court issues quick rulings without full briefs or oral arguments. In high-stakes cases like this, such opacity raises concern over accountability and transparency in judicial decision-making.
TNE: In your view, how does this all tie into the ongoing political narrative surrounding noncitizen voting?
EC: This is a pivotal factor. The decision feeds into the narrative propagated by some Republican leaders about widespread noncitizen voting, despite extensive evidence showing that it’s extremely rare. The manipulation of this narrative can influence public perception and voter sentiment leading up to elections, potentially resulting in laws and policies that could unjustly restrict voting rights for many.
TNE: Virginia Governor Glenn Youngkin framed the Supreme Court’s decision as a “victory for common sense and election fairness.” How do you respond to this characterization?
EC: It’s important to remember that the claim of ”fairness” must account for all eligible voters. While the intention behind attempting to remove noncitizens from the rolls may sound logical, the implementation may lead to severe consequences for innocent citizens. True electoral fairness requires not only protecting election integrity but also ensuring that eligible voters are not disenfranchised in the process.
TNE: Notably, the Biden administration had pushed back against Virginia’s program, calling it a systematic violation of the National Voter Registration Act. Where do you see the legal arguments heading from here?
EC: This will likely escalate into future legal battles. The Biden administration will continue to advocate for laws that protect voter rights and oppose any measures that can lead to systemic disenfranchisement. The forthcoming elections will be closely monitored, and any irregularities or voter suppression incidents will likely attract litigious responses from various advocacy groups.
TNE: what do you believe voters in Virginia should know as they head into the elections, especially with the potential confusion arising from the recent ruling?
EC: Voters should be vigilant and informed about their rights. It’s critical for citizens to check their registration status and ensure that they are still on the rolls. Additionally, they should be aware that they can still register to vote on Election Day in Virginia, provided they bring the necessary documentation. Ultimately, engaged and informed voters are key to ensuring their voices are heard in our democracy.
TNE: Thank you, Dr. Cartwright. Your insights into this complex issue are invaluable. We appreciate your time and look forward to following the unfolding developments regarding voter rights in the next few weeks.
EC: Thank you for having me. It’s been a pleasure discussing this important topic.
Stration Act. What are the potential legal ramifications if the Biden administration continues to contest Virginia’s actions?
EC: The Biden administration’s challenge highlights a significant tension between state policies and federal voting rights protections. If the administration pursues further legal action, it could lead to a more extensive judicial review of Virginia’s voter registration practices. Depending on the outcome, this could set precedence not only for Virginia but for other states considering similar measures. Moreover, a successful challenge could reinforce the safeguards outlined in the National Voter Registration Act, emphasizing the need for accurate and fair voter registration processes, which is critical in maintaining public confidence in our electoral system.
TNE: The immediate future looks uncertain for many voters in Virginia. How can citizens ensure that their rights are protected, especially with regard to the possibility of their registrations being purged?
EC: Citizens must remain vigilant and proactive. They should regularly check their voter registration status, especially as elections approach. Virginia offers same-day registration, which is an important option for those who may find their registrations unexpectedly canceled. It’s essential for voters to stay informed about their rights and the specific laws governing voter registration in their state. Engaging with local advocacy groups can also provide valuable resources and support for those navigating these complexities.
TNE: how do you foresee the implications of this Supreme Court decision impacting future legislative efforts regarding voting rights in the U.S.?
EC: This ruling could embolden state legislatures to adopt more aggressive voter roll maintenance measures under the guise of ensuring electoral integrity. Such actions may deepen the partisan divide over voting rights and inspire further challenges at the federal level, leading to a push for comprehensive reforms. Conversely, it may also galvanize grassroots movements and advocates pushing for more protections and transparency in the voting process, highlighting the ongoing struggle for equitable access to the ballot in America. The collective pushback could help shape future legislation aimed at expanding rather than restricting voting rights.
TNE: Thank you, Dr. Cartwright, for your insights on this important issue. It’s crucial for voters to remain informed and engaged as we navigate these evolving challenges in our electoral system.
EC: Thank you for having me. It’s vital that we continue these conversations and work towards a fair and accessible voting process for all.