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.
Youngkin calls order ‘victory for common sense’
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 rights groups slam court’s order
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.
Election experts grapple with court’s reasoning
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.
CNN’s Tierney Sneed contributed to this report.
