Virginia Republican officials asked the US Supreme Court on Monday to allow the state to implement a program to remove suspected noncitizens from the voter rolls, in one of the first major voting cases to reach the high court ahead of next week’s presidential election.
The appeal has political salience as former President Donald Trump and other Republicans have seized on the case as part of a false narrative of widespread voting by people in the country illegally.
It is one of several election-related suits that have already landed at the Supreme Court or that are expected to arrive in the final days before the November 5 election. Those cases are arriving amid an incredibly close contest between Trump and Vice President Kamala Harris and as polls show widespread distrust in the Supreme Court.
The election, already underway as millions of Americans cast early votes, has prompted a flood of litigation. But a new CNN poll conducted by SSRS found that a 56% of registered voters say they have just some or no trust in the Supreme Court to make the right decisions on any legal cases relating to the contest.
There’s a substantial political split in those numbers, with Trump supporters roughly twice as likely as Harris supporters to express at least a moderate amount of trust in the court.
Given the relatively small number of voters involved in the Virginia case and the fact that the state has reliably supported Democratic presidential nominees for the past several elections, the outcome is unlikely to have an impact on the race. But Trump has already repeatedly touted the case on social media, at one point describing a lower court’s ruling against the program as “election interference.”
Virginia officials asked the high court to act by Tuesday. Chief Justice John Roberts requested the parties that oppose the program to respond to the emergency appeal by Tuesday afternoon, signaling the court will handle the matter with haste.
A lower court ruling blocking the program, Virginia officials told the justices, would “irreparably injure Virginia’s sovereignty, confuse her voters, overload her election machinery and administrators, and likely lead noncitizens to think they are permitted to vote, a criminal offence that will cancel the franchise of eligible voters.”
At issue is 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 and other agencies against the voter rolls and to purge matches. State officials argue the roughly 1,600 people removed from the voter rolls under the program had themselves said they weren’t citizens.
But 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 – and, therefore, their right to vote – struck under the program. US District Judge Patricia Tolliver Giles said that none of the parties involved in the suit knew for certain the citizenship status of the purged voters because the information wasn’t verified.
“Neither the court nor the parties, either side, as we sit in this courtroom, know that those removed from those rolls were, in fact, noncitizens,” Giles, who was nominated by President Joe Biden, said Friday.
Both the District Court and a three-judge panel of the 4th US Circuit Court of Appeals – all appointed by Democratic presidents – quickly blocked Virginia from implementing the program.
The legal fight centers 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 and the voting groups said that Youngkin’s order created exactly that kind of systematic program within the so-called “quiet period” mandated by the federal law.
Despite protestations from Trump, none of the court orders block the state from making eligibility assessments about individual residents.
Trump and other Republicans have fixated on claims of illegal voting; that was part of the argument they made to explain the former president’s loss in 2020. However, 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.
In their appeal to the US Supreme Court, Virginia election officials rely in part on a murky legal theory that warns federal courts to avoid making last-minute changes to the status quo of voting rules before an election. The so-called “Purcell principle,” rooted in a 2006 Supreme Court decision, is intended to stop federal courts from getting dragged into last-minute election controversies.
But that principle has so far widely been understood to apply to challenges involving state laws; not executive orders. And in this case, there is a federal law involved imposing the quiet period.
This story has been updated with additional details.