SCOTUS conservatives allow Virginia's late voter-purge program to go back into effect

A stark reminder that this Supreme Court is not interested in being and will not serve as a guardrail for democracy.

The U.S. Supreme Court’s conservatives on Wednesday morning issued an order allowing Virginia’s late voter-purge program to go back into effect.

The Republican appointees gave no reasoning for their decision. The three Democratic appointees to the court only noted that they would have rejected Virginia’s request.

The decision, however, is substantive — and alarming. It blocked a district court injunction that had stopped the late voter-purge program announced on Aug. 7 — 90 days before the election. Part of Republicans’ efforts to demonize immigrants, Virginia Gov. Glenn Younkin claimed that the expanded program at issue here was needed to remove noncitizens from the voting rolls. Under the National Voter Registration Act of 1993 (NVRA), however, states are barred from carrying out systematic voter purges within 90 days of a federal election.

An appeals court had already refused to block the injunction stopping the program, and the injunction echoed a similar ruling out of Alabama. Although the four judges to consider the Virginia case below were all Democratic appointees, the Alabama injunction was issued by a Trump appointee.

The order from the Supreme Court’s Republican appointees implicitly constricts the relevant provision in the NVRA, known as the “Quiet Period” provision — although we don’t know why or how — from how lower courts have been interpreting it.

Perhaps more importantly, the order — coming less than a week before Election Day — also signals that the conservatives are willing to entertain and side with Republicans advancing arguments that would not hold water were it not for the Republican appointees’ supermajority on the Supreme Court.

Like the September 2021 shadow-docket order allowing Texas’s S.B. 8 vigilante enforcement abortion law to go into effect despite its six-week abortion ban being clearly unconstitutional under current law, Wednesday’s order is both a signal to the far-right lawyers (here, those cooking up legal challenges relating to the election) — and a warning to the rest of us.

---

The Supreme Court’s order technically stayed a district court’s injunction from Oct. 15 that a unanimous three-judge panel of the U.S. Court of Appeals for the Fourth Circuit had refused to block on Oct. 27. The lack of reasoning, however, means that lawyers across the country have no idea which of Virginia’s arguments led to this change six days before Election Day — and as voting is already underway.

Under the NVRA, states cannot carry out systematic voter purges within 90 days of a federal election. This “Quiet Period,” both judges in Alabama and Virginia found, meant that systematic efforts to remove voters within that 90 days based on alleged concerns about noncitizens voting were illegal under the NVRA.

Both injunctions made clear that individualized removal of noncitizens from voter rolls was still allowed, but the NVRA blocked systematic programs during the 90-day period. This provision exists, in part, because any systematic program is going to end up resulting in the cancellation of legal voter registrations — as has happened in Virginia — and that is not something that the federal government wanted happening in the immediate run-up to a federal election due to the confusion it could cause and the fact that it could prevent legal voters from being able to cast their votes.

As I reported over the weekend, Virginia’s lawyer at the district court, Chuck Cooper, admitted this could happen — and that the commonwealth was, ultimately, fine with that because it is “no more awful“ than if Virginia allowed a noncitizen to vote.

Now, the Supreme Court has essentially blessed that utter devaluing of a citizen’s right to vote.

Virginia is allowed to implement a program that will be removing legal voters from the voting rolls.

Luckily, however, as to Virginia voters, there is same-day voter registration, which allows people to register and cast a provisional ballot. So, those who are removed improperly, if they know or are informed of their rights, will still be able to vote.

As Danielle Lang, senior voting rights director at Campaign Legal Center noted, today’s order is “why reforms like same day registration are so important.”

And yet, the lack of clarity from the Supreme Court about its decision is a big problem. What happened on Wednesday? Beyond “Republicans got what they wanted,” we don’t really know. Election administrators don’t know. Lawyers don’t know. Virginia’s request to the Supreme Court was a hodgepodge of weak arguments that the Fourth Circuit’s ruling addressed in its Oct. 28 order.

Virginia argued that the Purcell principle, which counsels against late changes in election-related rules lest they cause confusion, applies here — all but ignoring the fact that the Quiet Period provision is a federal law addressing changes close to an election, with rules on how it is to be enforced. Relatedly, Virginia argued that the plaintiffs delayed in their litigation — despite the plaintiffs having shown how their response to Younkin’s change, announced 90 days before the election, fit perfectly within the NVRA.

Substantively, Virginia argued that because noncitizens are never properly registered, a noncitizen purge is outside of the NVRA altogether. This misses both the fact of how the NVRA and its exceptions are written, as the Fourth Circuit discussed, as well as the fact that citizens are being swept up in the purge — people who absolutely are protected by the NVRA and provide further evidence of why the Quiet Period exists in the first place. Finally, Virginia also argued that its process was individualized, not systematic, because individuals took action at some point in the process to have their registration flagged in … the commonwealth’s systematic purge. I think that argument fails on its face, but, there it is.

One or some combination of those arguments apparently served as Wednesday’s fig leaf to allow Virginia to resume this late voter-purge program. And yet, it’s an invisible fig leaf, since the court didn’t explain its decision.

That such bad arguments got this relief from the Supreme Court is likely the most alarming message of this order. That even Chief Justice John Roberts, who dissented in the S.B. 8 case, did not note any dissent here is all the more alarming. Of course, Roberts has a long history of being open to restrictions on voting rights and of hobbling laws protecting voting rights, so it’s not particularly surprising. It is alarming, nonetheless, because the decision likely had support from all six Republican appointees.

Not that we needed it after this past term’s decisions relating to Donald Trump and January 6, but Wednesday’s order is a clear, stark reminder that the Supreme Court, as currently composed, is not interested in being and will not serve as a guardrail for democracy.