State’s emergency appeal to Supreme Court is next after Dem-dominated appellate panel backs Biden-appointed judge and the Biden-Harris DOJ.
A federal appeals court has upheld last week’s order by Judge Patricia Giles, a Biden appointee, that Virginia restore to its voter rolls approximately 1,600 people removed because they’ve self-identified as noncitizens — notwithstanding that both registering to vote and voting are federal crimes if done by aliens. (See my prior posts, here and here.)
In a six-page decision issued Sunday night, a three-judge panel of the Fourth Circuit appellate court concurred with Judge Giles that Virginia’s removal effort violates the National Voter Registration Act (NVRA). The three panel members were Judge Toby Heytens, a Biden appointee, joined by Chief Judge Albert Diaz and Judge Stephanie Thacker, both Obama appointees.
The ruling centers on §20507(c)(2)(A) of Title 52, U.S. Code (where the NVRA is codified). It states:
A State shall complete, not later than 90 days prior to the date of a primary or general election for Federal office, any program the purpose of which is to systematically remove the names of ineligible voters from the official lists of eligible voters.
The Fourth Circuit panel agreed with Judge Giles that Virginia’s removal of noncitizens from the voter rolls is a “program” for the purpose of “systematically” removing “ineligible voters” from the rolls. Therefore, the panel further agreed, the program was illegal because Virginia implemented it within the 90-day window (referred to as the “quiet period”).
The circuit says that the Commonwealth does not deny that its removal effort is a “program.” The panel agreed with Giles that the program was systematic because it “does not require communication with or particularized investigation into any specific individual,” but instead relies on electronic comparisons of the voter rolls to “other agency databases.”
Virginia’s Republican governor Glenn Youngkin maintains that the program is not “systematic.” As I’ve previously argued, I think he’s right about that. Using the aid of databases for comparison purposes does not make the removal effort systematic. There is individualized investigation in that the removal is based on the alien’s own admissions to the agencies that compile these databases that he or she is a noncitizen.
Furthermore, Virginia law provides for same-day registration, and a person who shows up to vote and attests that he or she is eligible is permitted to cast a provisional ballot even if his or her name does not appear on the voter rolls. The court’s rationale that Virginia’s effort, which enforces federal laws that criminalize voting by aliens, could result in Americans being denied the right to vote does not withstand scrutiny.
Virginia’s best argument is that non-Americans are not voters as that term is understood in federal law. Again, aliens are not permitted to register or vote — federal law criminalizes doing either of those things. When §20507 refers to ineligible voters, it is talking about Americans who were otherwise eligible to be voters but have lost their eligibility because of various disqualifications — e.g., death, commission of a crime, adjudication as mentally incompetent, or change of residence to a place outside the state or voting district (all categories excepted from the prohibition against systematic removal during the 90-day quiet period, under §20507(c)(2)(B)).
The point of the quiet period is to protect Virginians who are American citizens and eligible voters from being purged due to bureaucratic error. It is obviously not — and has never until now been thought to be — to protect aliens, many thousands of whom are residing in Virginia illegally and who were never voters in the first place. Aliens require no protection against being erroneously removed from rolls they are not permitted to be on in the first place.
This, no doubt, is why the Justice Department in 2006 alerted Tim Kaine — then the Commonwealth’s Democratic governor, later a Democratic vice-presidential candidate and U.S. senator — that it did not object to similar removal programs, which were undertaken by other Democratic governors as well. (The Biden-Harris Justice Department insists that we honor precedent . . . unless the precedent cuts against progressive Democratic objectives.)
The circuit panel echoed Judge Giles in insisting that the state remains “able to prevent noncitizens from voting by canceling registrations on an individualized basis or prosecuting any noncitizen who votes.”
This is specious. The program does cancel registrations on an individualized basis since it relies on a person’s own assertions of non-citizenship. The court’s problem, apparently, it that in doing this by comparisons of electronic databases, the program may be too efficient in identifying aliens. And again, since those challenged are permitted to vote provisionally if they attest to their citizenship, there is no real danger that an American will be denied the right to vote if there has been a bureaucratic error (an error likely caused by misinformation that the person provided to a state agency).
Moreover, the fact that an alien who votes can subsequently be prosecuted by state and/or federal law-enforcement does not cure the problem Virginia is concerned about, namely, that every alien vote counted cancels out the ballot of an American citizen qualified to decide elections in Virginia.
Virginia attorney general Jason Miyares has announced that, on Sunday night, the Commonwealth filed an application for an emergency stay in the Supreme Court.