It’s bad law, bad policy, and bad politics to sue Virginia to protect noncitizens from being removed from the voter rolls.
It’s bad law, bad policy, and bad politics to sue Virginia to protect noncitizens from being removed from the voter rolls.
T he Justice Department under Merrick Garland has often more resembled a left-wing blog than a sober, impartial enforcer of the law. Jack Smith’s antics may get the most headlines, but the Civil Rights Division under Kristen Clarke has regularly filed ideologically charged lawsuits against states that try to govern themselves, enforce their own laws, or step up when the feds won’t enforce their laws. Clarke and her anti-democracy team are at it again with a lawsuit filed on Friday against Virginia, on the heels of a similar suit filed on September 27 against Alabama, to prevent those states from removing noncitizens from the voting rolls before Election Day. Andy McCarthy covered this suit yesterday. I’d like to take a deeper dive into both the law and the politics.
The lawsuit against Alabama takes an aggressive reading of the relevant federal law, based on a number of facts that the DOJ believes make a persuasive case. The suit against Virginia just copies the Alabama suit but with all of the persuasive facts stripped out. It is therefore an especially weak case to test the DOJ’s legal theory.
In the Alabama case, the DOJ argues that the state can’t launch a review of the voting rolls for noncitizens less than 90 days before the election based on information it already had and could have used earlier. But in the Virginia case, which involves an individualized, daily review of new information, the DOJ’s position would effectively prevent the state from ever removing any noncitizens from the voter rolls in the months before an election even when it discovers new evidence particular to that voter that makes certain the voter’s ineligibility to vote. This amounts to completely obstructing the state’s ability to stop such people from voting even though doing so is a felony under federal law.
The politics of the Virginia suit are inexplicable except as an illustration of the ideological zealotry of Clarke and Garland. Governor Glenn Youngkin gets to defend a popular bipartisan state law signed in 2006 by then-governor Tim Kaine, who is presently running for reelection to the Senate. In an election cycle in which the Biden-Harris administration’s border policies are a clear political weakness for Democrats, it also gives credence to the charge that Democrats want noncitizens to vote in order to help Democrats win elections. If that was their goal, this is exactly what they’d be doing.
The State-Law Landscape
Maintenance of lists of registered voters is exclusively a state responsibility, and it is governed in the first instance by state laws, subject to duties and limitations enacted by Congress. There is no real question that Virginia is following an uncontroversial and bipartisan state law that has been in use for years. It is illegal under Virginia law for noncitizens to vote in federal or state elections.
Virginia statutes have, since 2006, required three steps from the state and local government:
- First, under Code § 24.2-410.1, the Virginia Department of Motor Vehicles (DMV) “shall include on the application” for various licenses and registrations “a statement asking the applicant if he is a United States citizen,” and “shall furnish monthly to the Department of Elections [ELECT] a complete list of all persons who have indicated a noncitizen status.” The DMV “is not responsible for verifying the claim” of citizenship; it is self-reported by the individual.
- Second, under Va. Code § 2-404, ELECT matches those names to voter lists and forwards the names to the registrar with instructions to delete noncitizens, which is required of the registrar under Va. Code § 24.2-427.
- Third, the registrar then initiates an individual process to contact and inform the identified noncitizen, who can then avoid being removed by showing that they are (notwithstanding what they told the DMV) actually a citizen. The process is set forth under Va. Code §§ 2-427 & 24.2-429.
The system contains three levels of fail-safe: The identified noncitizen is given 14 days’ notice that their registration will be canceled; if they don’t respond, they are then given notice that it has been canceled; and if all else fails, Virginia still has same-day voter registration to re-register.
On August 7, as part of a wider executive order on election security, Governor Youngkin ordered the DMV to “expedite the interagency data sharing” with ELECT, above and beyond the monthly reporting, “by generating a daily file of all non-citizens transactions.” Other than accelerating the reporting process already mandated by law, everything else continued as it had been for the past 18 years. But because the order was issued 90 days before the election, the DOJ claims that it violates federal law.
The Alabama lawsuit arises out of a more ambitious program initiated on August 13 by Alabama secretary of state Wes Allen to compare voter rolls to preexisting records for driver’s licenses and unemployment data. The DOJ does not claim that either Virginia or Alabama has in any way acted inappropriately under state law, nor does it contend that these steps would be unlawful if taken at any time outside the 90-day window before an election.
The Federal-Law Landscape
The central question of federal law at issue in the Virginia lawsuit is whether its individualized daily flagging of noncitizens amounts to “systematically” removing them from the voter rolls.
Contrary to what Democratic rhetoric might lead you to believe, it’s not against the law for states to purge people from their voter rolls. Given the fact that Americans are mobile and the fact that 100 percent of all voters die, registration records would swiftly become useless if they were not regularly purged of the names of people no longer living in a state.
In fact, under the National Voter Registration Act of 1993 (NVRA) and the Help America Vote Act of 2002 (HAVA) — both passed with sweeping bipartisan support — states are required to, among other things, “conduct a general program that makes a reasonable effort to remove the names” of voters who are ineligible “by reason of ” death or change in residence. 52 U.S.C. § 20507(a)(4). States can check addresses from Postal Service change-of-address records and are required to be informed by the local United States attorney of a felony conviction that may affect voter eligibility. 52 U.S.C. § 20507(g).
Under 52 U.S.C. § 20507(c)(1), “a State may meet the requirement of subsection (a)(4)” — that is, the requirement to “conduct a general program” for removing voters ineligible due to death or change of residence — by “establishing a program” to remove such names based on information from the Postal Service. However, states are not supposed to conduct such programs within 90 days of an election: “a State shall complete, not later than 90 days prior to the date of a primary or general election for Federal office, any program the purpose of which is to systematically remove the names of ineligible voters from the official lists of eligible voters.” 52 U.S.C. § 20507(c)(2)(A) (emphasis added).
That 90-day window is the subject of the suits against Virginia and Alabama: The Civil Rights Division doesn’t argue that they are not allowed to remove noncitizens from the rolls but that they can’t do so within 90 days of a federal election.
But the 90-day “quiet period” has exceptions. For example, states are permitted to remove a voter from the lists on the voter’s request “by reason of criminal conviction or mental incapacity” or because the voter has died. 52 U.S.C. § 20507(c)(2)(B). The state is also allowed to correct rather than remove a registration.
There’s a bit of legal ambiguity in these definitions as regards people who are ineligible to vote by virtue of not being citizens. Nobody doubts that states may strike noncitizens from the rolls. But the requirement to establish programs to remove ineligible voters only expressly applies to those who died or moved, and the quiet period’s exceptions deal explicitly with death, conviction, and mental incapacity. By contrast, the quiet period itself simply says “systematically remove the names of ineligible voters from the official lists of eligible voters,” without enumerating whether that includes voters ineligible by reason of noncitizenship.
That said, all involved seem to assume that the rules for removing ineligible noncitizens are governed by the 90-day quiet period and are not subject to any specific exception. The Eleventh Circuit concluded, in Arcia v. Fla. Sec’y of State (2014), that it was, given that NVRA “is premised on the assumption that citizenship is one of the requirements for eligibility to vote.” Arcia also concluded that “Congress expressly allowed for a number of exceptions to the 90 Day Provision, and an exception for removals of non-citizens is not one of them.” Arcia would not be binding on the courts in Virginia, as it would in Alabama, but it likely would be followed.
That doesn’t prohibit non-systematic removals, however. As the Justice Department’s own website explains, the framework of permissions and requirements under NVRA and HAVA contemplates that states will check to determine that voters are citizens.
The voter registration application must state each voter eligibility requirement (including citizenship), contain an attestation that the applicant meets each requirement, state the penalties provided by law for submission of a false voter registration application and require the signature of the applicant under penalty of perjury. . . . Section 303(b) of [HAVA] also requires that the national mail application include certain additional information: First, the question “Are you a citizen of the United States of America?” and boxes for the applicant to check to indicate whether the applicant is or is not a citizen of the United States.
That’s appropriate, because under 18 U.S.C. § 611, it’s “unlawful for any alien to vote in any election held solely or in part for the purpose of electing a candidate for” any federal office, and noncitizens can face up to a year in jail for doing so. Under 18 U.S.C. § 1015, it’s also a felony carrying up to five years in prison if a noncitizen “knowingly makes any false statement or claim that he is a citizen of the United States in order to register to vote or to vote in any Federal, State, or local election.”
Noncitizens don’t get caught voting very often, but it can and does happen: a Bipartisan Policy Center analysis of the Heritage Foundation’s Election Fraud Cases database found “77 instances of noncitizens voting between 1999 and 2023.” It’s obviously preferable to prevent such cases in advance by maintenance of the voter rolls than to have to prosecute them after the fact.
The Two Lawsuits
The Eleventh Circuit in Arcia explained why the Florida program at issue in that case met the statutory test for “systematically” removing voters:
[Florida’s] program did not rely upon individualized information or investigation to determine which names from the voter registry to remove. Rather, the Secretary used a mass computerized data-matching process to compare the voter rolls with other state and federal databases, followed by the mailing of notices. [Emphasis added]
In its complaint against Alabama, the DOJ emphasized that Alabama, like Florida in Arcia, was conducting a review of existing databases to check for noncitizens. That program identified 3,251 people as possible noncitizens. The DOJ complaint noted that the unemployment database contained information from as far back as four years ago, and the Alabama DMV database went back eight years, which created the risk that people who were noncitizens then might be citizens now.
While the accuracy or inaccuracy of a program isn’t legally relevant — the federal statute focuses only on whether the program is systematic — the 90-day quiet period exists in part due to concerns that people removed from the rolls erroneously before an election may not have time to challenge the decision or get re-registered. The DOJ faults Alabama for the fact that 700 people targeted by the program were ultimately able to re-register, and it complains that the relevant state databases have a history of errors and that recipients were warned that they could not re-register within 14 days of an election, without telling them of the option to revive their registration on Election Day at the polling place.
Whatever the merits of these arguments, all of them are conspicuously absent from the Virginia complaint, even though it was drafted by the same lawyers and is, to the eye of any reader, obviously copied from the same template (the first three paragraphs are identical). Virginia isn’t scouring old databases; it’s obtaining new information on a daily basis that it could not have reviewed before the 90-day period because it was just obtained by the DMV.
While the complaint recites that 6,303 people were removed systematically by Virginia in the two and a half years before the executive order, it cites only scattered data on the number of removals, including 90 in Loudoun County. The DOJ rather misleadingly complains that registrars do not have discretion to keep people on the rolls “even when the registrar has reason to believe that the voter is a United States citizen,” but that’s what the process of seeking a response from the voter is for. If they respond by verifying their citizenship, the registrar is required to keep them registered, after all.
The fundamental question raised by the DOJ complaint against Virginia is, if this method is prohibited, what would be allowed? Nowhere does the DOJ suggest what a non-systematic process would look like if a process of reviewing individual information only when newly received is forbidden.
More broadly, this lawsuit reflects Democrats’ deep-seated hostility to the entire concept of voter registration, as well as a view of voters as childlike and fragile in their complete inability to take responsibility for the obligations of citizenship — including being a citizen in the first place.
Into the Briar Patch
Naturally, Democrats can see only their usual theme that Republicans are evil vote-suppressors. Virginia Democratic congressman Gerry Connolly issued a statement crowing:
This week, I alerted the Department of Justice to Governor Glenn Youngkin’s daily, systematic purging of voter rolls in Virginia less than a month before the election. Today, I commend the DOJ for filing a lawsuit to stop those purges. Governor Youngkin’s effort to cancel voter registrations is, according to the Department of Justice, clearly against federal law. . . . It brings with it the potential to unduly disenfranchise legitimate voters and is causing unnecessary confusion across Virginia.
Governor Youngkin’s voter purges are Trumpian politics at its worst. Voter fraud, particularly as it relates to citizenship, is exceedingly rare in Virginia. The Governor’s purges, on the other hand, have removed from the voter rolls thousands of lawfully voting citizens of the Commonwealth.
Notably, not only does Connolly ignore the long-standing and bipartisan basis of the law enforced by Youngkin, the allegation of purging “thousands” of citizens from the rolls is not supported by any allegation in the DOJ’s complaint. Democrats are used to this sort of thing being swallowed whole by the press, and they have some takers. Consider this CBS “fact-check”:
David Becker, executive director of the Center of Election Innovation and Research and CBS News election law contributor, said the Justice Department is enforcing a deadline for voter roll maintenance that election officials have followed for about 30 years. “Governor Youngkin is correct that the Justice Department needing to sue a state like his so close to an election is ‘unprecedented,’ but that’s because no state has sought to violate this law before this year,” Becker said.
Becker is apparently unaware that this very issue was litigated a decade ago in Florida and is already in litigation in Alabama. But he’s also ignoring how the Virginia program is different from those cases. Youngkin’s statement shot back:
With less than 30 days until the election, the Biden-Harris Department of Justice is filing an unprecedented lawsuit against me and the Commonwealth of Virginia, for appropriately enforcing a 2006 law signed by Democrat Tim Kaine that requires Virginia to remove noncitizens from the voter rolls — a process that starts with someone declaring themselves a non-citizen and then registering to vote. Virginians — and Americans — will see this for exactly what it is: a desperate attempt to attack the legitimacy of the elections in the Commonwealth, the very crucible of American Democracy. With the support of our Attorney General, we will defend these commonsense steps, that we are legally required to take, with every resource available to us. Virginia’s election will be secure and fair, and I will not stand idly by as this politically motivated action tries to interfere in our elections, period.
The fact that Youngkin welcomes this fight can be seen from his media tour to attack the lawsuit, including his appearances with Sean Hannity on Fox and Jake Tapper on CNN. Garland and Clarke have thrown him in the briar patch, and he couldn’t be happier.