Judge rules on Virginia's voter roll executive order

RICHMOND, Va. — A federal judge on Friday ordered Virginia to restore more than 1,600 voter registrations that she said were illegally purged in the last two months in an effort to stop noncitizens from voting.

U.S. District Judge Patricia Giles granted an injunction request brought against Virginia election officials by the Justice Department, which claimed the voter registrations were wrongly canceled during a 90-day quiet period ahead of the November election that restricts states from making large-scale changes to their voter rolls.

Thomas Sanford, an attorney with the Virginia attorney general's office, told the judge at the conclusion of Friday's hearing that the state intends to appeal her ruling.

The Justice Department and private groups, including the League of Women Voters, said many of the 1,600 voters whose registrations were canceled were in fact citizens whose registrations were canceled because of bureaucratic errors or simple mistakes like a mischecked box on a form.

Justice Department lawyer Sejal Jhaveri said during an all-day injunction hearing Thursday in Alexandria, Virginia, that's precisely why federal law prevents states from implementing systematic changes to the voter rolls in the 90 days before an election, “to prevent the harm of having eligible voters removed in a period where it's hard to remedy.”

Giles said Friday that the state is not completely prohibited from removing noncitizens from the voting rolls during the 90-day quiet period, but that it must do so on an individualized basis rather than the automated, systematic program employed by the state.

State officials argued unsuccessfully that the canceled registrations followed careful procedures that targeted people who explicitly identified themselves as noncitizens to the Department of Motor Vehicles.

Charles Cooper, a lawyer for the state, said during arguments Thursday that the federal law was never intended to provide protections to noncitizens, who by definition can't vote in federal elections.

“Congress couldn't possibly have intended to prevent the removal ... of persons who were never eligible to vote in the first place,” Cooper argued.

The plaintiffs who brought the lawsuit, though, said that many people are wrongly identified as noncitizens by the DMV simply by checking the wrong box on a form. They were unable to identify exactly how many of the 1,600 purged voters are in fact citizens — Virginia only identified this week the names and addresses of the affected individuals in response to a court order — but provided anecdotal evidence of individuals whose registrations were wrongly canceled.

Cooper acknowledged that some of the 1,600 voters identified by the state as noncitizens may well be citizens, but he said restoring all of them to the rolls means that in all likelihood "there's going to hundreds of noncitizens back on those rolls. If a noncitizen votes, it cancels out a legal vote. And that is a harm," he said.

He also said that with the election less than two weeks away, it's too late to impose the burden of restoring registrations on busy election workers, and said the plaintiffs who filed their lawsuits roughly two weeks ago should have taken action sooner.

Virginia's Republican governor, Glenn Youngkin, issued an executive order in August requiring daily checks of DMV data against voter rolls to identify noncitizens.

State officials said any voter identified as a noncitizen was notified and given two weeks to dispute their disqualification before being removed. If they returned a form attesting to their citizenship, their registration would not be canceled.

In media interviews, Youngkin has questioned the Justice Department’s motives for filing the lawsuit.

“How can I as a governor allow noncitizens to be on the voter roll?” Youngkin asked rhetorically during an appearance of Fox News Sunday.

Virginia's Republican attorney general, Jason Miyares, issued a statement after Friday's hearing, criticizing the ruling.

“It should never be illegal to remove an illegal voter,” he said. “Yet, today a Court – urged by the Biden-Harris Department of Justice – ordered Virginia to put the names of non-citizens back on the voter rolls, mere days before a presidential election. The Department of Justice pulled this shameful, politically motivated stunt 25 days before Election Day, challenging a Virginia process signed into law 18 years ago by a Democrat governor and approved by the Department of Justice in 2006.”

Nearly 6 million Virginians are registered to vote.

A similar lawsuit was filed in Alabama, and a federal judge there last week ordered the state to restore eligibility for more than 3,200 voters who had been deemed ineligible noncitizens. Testimony from state officials in that case showed that roughly 2,000 of the 3,251 voters who were made inactive were actually legally registered citizens.