The Supreme Court issued a surprising order on Wednesday morning that allows Virginia’s Republican governor to openly defy a federal voting rights law. Though the Court didn’t announce how every justice voted in Beals v. Virginia Coalition for Immigrant Rights, only its three Democrats publicly dissented.
The GOP-controlled Court’s order is surprising because the federal law at issue in Beals, known as the National Voter Registration Act (NVRA), is so clearly written. It prohibits states from “systematically” removing “the names of ineligible voters from the official lists of eligible voters” within 90 days of a primary, or general election for federal offices. Virginia began a purge of about 1,600 voters, who its top Republican officials claim are noncitizens, exactly 90 days before the upcoming election. (A federal court later determined that some of the purged voters were, in fact, citizens.)
Realistically, this purge is unlikely to change the result of any races this election. Virginia has consistently voted for Democrats at the presidential level since 2008, and it’s not even clear how many of the people caught in this purge are lawful voters who intended to cast a ballot. But the Court’s decision to back the purge could have tremendous national implications because it suggests that the justices will allow states to ignore the NVRA.
Previously, two lower federal courts ordered Virginia to abandon the purge, at least until after the election, and to restore the purged names to the state’s voter rolls. Wednesday’s order does not explain why the justices decided to reinstate this purge.
One reason why the case is worrisome, however, is that Virginia’s Republican Attorney General Jason Miyares made several arguments in defense of the purge that would effectively neutralize the NVRA’s 90-day pause on voter purges altogether.
Because the Supreme Court did not explain its order in Beals, it is impossible to know whether a majority of the justices accepted Miyares’s most aggressive arguments. It is likely, however, that the Court will return to this case at a future date — the order in Beals is temporary and will likely only leave this purge in place during the current election cycle — and when the Court does so, it could potentially repeal an important voting rights law.
Virginia’s legal arguments would effectively repeal the ban on voter purges close to an election
Miyares made several arguments to justify reinstating the purge, some of which are less consequential than others. He claimed, for example, that the plaintiffs’ in this case — the Justice Department and an immigrants rights group — waited too long to file the lawsuit. This argument isn’t particularly persuasive, but it would at least leave the NVRA intact if the Court ruled in the Virginia GOP’s favor on this narrow procedural ground.
At least two of Miyares’s arguments, however, essentially asked the Supreme Court to repeal the ban on purges close to an election — or, at least, to render it unenforceable.
First, Miyares claimed that, by blocking Virginia’s purge, the lower federal courts that heard this case violated the Supreme Court’s decision in Purcell v. Gonzalez (2006), a vague opinion warning federal judges to be cautious about altering a state’s election procedures close to an election.
But as the trial judge who heard the Beals case explained, court decisions enforcing the federal ban on last minute alterations to voter rolls “are always going to be close to elections” because disputes will only arise if changes are made in the three months immediately preceding Election Day. Indeed, a federal court cannot halt a purge that takes place outside of the 90-day window because such purges are lawful (provided they comply with all other provisions of federal law).
Purcell’s warning against altering election rules close to an election, moreover, does not derive from the Constitution or from any statute. It is, instead, a pragmatic rule that the Supreme Court invented due to concerns that late-breaking changes to a state’s election law could “result in voter confusion and consequent incentive to remain away from the polls.”
That matters because the Court held in United States v. Oakland Cannabis Buyers’ Cooperative (2001) that these kinds of rootless, judge-made legal rules cannot overcome a federal statute. Courts, according to the decision, “cannot ‘ignore the judgment of Congress, deliberately expressed in legislation.’” So Congress’s decision to enact a ban that can only be enforced during the 90 days before an election should override the principles that drove the Court’s Purcell decision.
Additionally, Miyares claimed that the 90-day ban on voter purges does not apply to noncitizens. But this argument has no basis in statutory text. The NVRA applies that ban to any “systematic” attempt to “remove the names of ineligible voters.” Noncitizens are ineligible to vote, and therefore count as “ineligible voters.” There’s really no other plausible way to read this statute.
Nevertheless, Miyares did attempt to make a textual argument for why noncitizens are exempted from the statute, but that argument is difficult to parse. In his brief, Miyares pointed to an entirely different provision of the NVRA, which applies to voter “registrants.” He then argued that noncitizens do not qualify as “registrants.”
Having made this seemingly irrelevant argument, Miyares then made the logical leap that noncitizens do not count as “ineligible voters” because “only a ‘registrant’ can become a ‘voter’ in the first place.” But no one claims that noncitizens can become voters. Everyone agrees that noncitizens are ineligible to vote. That’s why they qualify as “ineligible voters.”
In any event, if the Supreme Court fully embraces this argument, it would also effectively neutralize the 90-day ban. Under Miyares’s approach, all a state would have to do to evade the 90-day ban is to claim that the voters it seeks to purge are noncitizens. If those voters turn out to be citizens, they may eventually restore their voting rights, but potentially not until the election has already passed.
Since the justices didn’t explain their initial decision in Beals, we will have to wait until a later date to find out if the Court’s Republican majority wants to kill the 90-day ban on voter purges entirely, or if they just wanted to protect Virginia’s purge during this one election cycle.
