Appeals court rejects Virginia's request to continue its late voter-purge program

Update: The Fourth Circuit’s Sunday order largely leaves in place Friday's injunction. However, Virginia earlier suggested they’d go to SCOTUS next if needed.

Update, 1:20 p.m. October 27:

On Sunday, the U.S. Court of Appeals for the Fourth Circuit rejected Virginia’s request to restart its late voter-purge program, with a three-judge panel unanimously concluding, “[Virginia] argue[s] the challenged conduct does not violate the National Voter Registration Act (NVRA). Like the district court, we are unpersuaded.“

The appeals court refused to stay all but one provision of U.S. District Judge Patricia Tolliver Giles’s October 25 injunction that had followed her finding that the late voter-purge program was likely illegal under the NVRA.

The six-page order was “[e]ntered at the direction of” Judge Toby Heytens, a Biden appointee. Chief Judge Albert Diaz and Judge Stephanie Thacker, both Obama appointees, concurred.

In addition to holding that the district court was likely correct in its findings about Virginia’s program itself, the appeals court also criticized Virginia’s claims about the public’s interests in this case:

[T]he district court did not err in concluding that both the balance of the equities and the public interest favor interim equitable relief that gives full force and effect to a federal law that functions to prevent last-minute voter registration purges and to ensure that people who are legally entitled to vote are not prevented from doing so by faulty databases or bureaucratic mistakes.

The only portion of the injunction that the panel blocked for now was a provision — paragraph 7 of the injunction — under which Giles had ordered Virginia to implement a last-minute education program to offset the damage of the late-voter purge program. Of that, the panel held, “While we appreciate the district court’s careful work under substantial time constraints, we conclude that paragraph 7 of the preliminary injunction is not sufficiently clear as to its scope and risks undue confusion in its implementation.”

Update, 4:55 p.m. October 27: The Virginia Attorney General’s Office “will file an appeal in the U.S. Supreme Court immediately,” the office’s communications director, Shaun Kenney, told Law Dork.

The filing likely will be an application for a stay pending appeal, and Law Dork will have more when it actually is filed.

Update, 12:45 p.m. October 28:

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Original article:

After a federal judge blocked Virginia’s late voter-purge program on Friday for violating a federal law against such programs, Virginia’s lawyers — including an outside firm — sought an order from an appeals court to continue the program.

If the court doesn’t do so, they stated, they will go to the U.S. Supreme Court this coming week to ask the justices to allow them to do it.

Virginia is fighting to continue this program despite its lawyer saying in court this past week that the process for implementing the program would not “eliminate every unfortunate error.” In other words, Virginia admitted that the program would cancel the registration of some legal voters.

Under the National Voter Registration Act of 1993 (NVRA), states can't carry out systematic voter purges within 90 days of a federal election. Part of the reason for that is due to the confusion it would cause if a voter is improperly removed from the rolls so close to an election.

Virginia Gov. Glenn Younkin, a Republican, all but spat on that law, issuing an executive order on Aug. 7 — 90 days before the federal election — to create a daily program for purging voters. A part of anti-immigrant campaigning, the effort purported to remove non-citizens from the voter rolls. Due to the databases used, however, the program can pick up — and set toward cancelled registration — people who issued conflicting information on different forms or who later became naturalized citizens.

The problem with that is two-fold: First, it violates NVRA, and, second, it illustrates in its implementation why the provision is in the NVRA — by inadvertently removing legal voters from the rolls in the run-up to the election.

Both nonprofit organizations, led by the Virginia Coalition for Immigrant Rights, and the United States have sued Virginia over the program, and the cases were consolidated before U.S. District Judge Patricia Tolliver Giles, a Biden appointee.

At a hearing in the case this past Thursday, October 24, it was revealed that the program has resulted in more than 1,600 people having their registration canceled.

Chuck Cooper from Cooper & Kirk, representing Virginia at the hearing, repeatedly acknowledged that the program was almost certainly cancelling the registrations of legal voters. At one point, he went so far as to argue that that was OK because it was more important that Virginia cancel the registration of non-citizens.

Cooper stated in court:

There is no doubt at all that if 1, 600 people that the Commonwealth believes to be noncitizens, understanding that there may be some — there may be mistakes there, but there are going to be hundreds of noncitizens back on those rolls, and every time — and if a noncitizen votes, it will cancel out a legal vote, so that is a harm as well. …

And it's our earnest belief that that harm represents a significantly larger threat than does the -- than does the possibility of error as a result of this system, an error that results, despite same-day registration and all the rest of it, in the awful circumstance where an individual loses their opportunity to vote.

We're not making light in any way of that, but it's no more awful than a person's legal vote being canceled by somebody who's not authorized to vote, who's not eligible to vote.

Putting aside the fact that a registration doesn’t mean a vote because a noncitizen who is registered might know that they can’t vote, even if Cooper is right, he said that an individual noncitizen voting illegally is the same as Virginia itself taking away a person’s legal right to vote.

Cooper literally equated them — saying that “it’s no more awful.”

This is a horrifying statement.

Individuals break laws. That’s why we have and enforce those criminal laws. Cooper said — argued for Virginia in court — that it is “no more awful” for the government to take away a person’s rights — here, the right to vote.

The fact that a lawyer representing the state is arguing that is appalling. It also lays bare the complete degradation of Republicans’ valuation of voting rights in an unusually stark and depressing way.

At the district court, however, Cooper’s argument for Virginia did not work, with Giles explaining in court on Friday morning that Virginia likely violated the NVRA. She then issued an injunction blocking the program and ordering Virginia to restore voter registrations cancelled under the program after August 7.

A Trump appointee had issued a similar ruling in a case involving an Alabama late voter-purge program on October 16, as covered at Law Dork. Notably, Alabama has not appealed that ruling.

Virginia, however, almost immediately went to the U.S. Court of Appeals for the Fourth Circuit, arguing on Friday night that it needs an emergency stay of Giles’s injunction.

A key piece of Virginia’s argument is that this lawsuit has come too late, characterizing Friday’s order as an “election-eve injunction.” The first words of Virginia’s brief to the Fourth Circuit state: “Less than two weeks before the 2024 Presidential Election ….”

This is disingenuous, at best, as most if not all litigation relating to the NVRA 90-day restriction is going to come within 90 days of an election. What’s more, the lawyer for the nonprofit organizations challenging Virginia’s program, Brent Ferguson with Campaign Legal Center, explained why this litigation came when it did at the hearing this past week:

At the Fourth Circuit, meanwhile, both the Biden administration and the nonprofit organizations filed their opposition to Virginia’s request early Saturday afternoon.

A reply is due from Virginia by 7 p.m. Saturday. [Update, 9:25 p.m.: Virginia filed its reply.] Virginia, meanwhile, has asked for a decision by 10 a.m. Monday, October 28.

In its request, Virginia added, “If the Court declines to grant a longer stay, it should at a minimum stay the injunction until Friday, November 1, to permit the Supreme Court to consider an application for a stay.”

Law Dork will have more on this case as circumstances warrant.